Amendment No. 10 was discussed with amendment No. 9, which the House will remember was defeated on division immediately before progress was reported. The only question that can arise now is as to how this amendment will be disposed of. Discussion on it has ended.
Anti-Discrimination (Unfair Dismissals) Bill, 1976: Committee Stage (Resumed).
SECTION 4.
Is the Ceann Comhairle saying that we cannot vote on No. 10?
The Deputy can vote on it, but it cannot be discussed. It was discussed with No. 9 and other amendments. Before we commence discussion on the Bill I should like to point out that on the 8th December last the House agreed to discuss amendments Nos. 9 and 10 together. A decision was taken on amendment No. 9, therefore there can be no further discussion on amendment No. 10. Does Deputy Fitzgerald propose to move the amendment in order to obtain a separate decision now or does the Deputy wish to withdraw the amendment?
Will the Minister look at the human aspect involved in this amendment and consider the one month? This is not very controversial.
The question is in order, but a debate is not.
Between now and the Report Stage will the Minister look at the one month term. My reason for asking this is that there could be discrimination in the current employment situation against an apprentice who may have completed his term with an employer who may not have work for him when he is qualified but who would keep him in employment for a period over and above the month while he is seeking another job. On that basis between now and Report Stage would the Minister look at this, and I will not press a division on this amendment?
The main problem arises from the fact that I have been keeping the periods here consistent with the periods referred to in the Redundancy Payments Act. I will certainly have a look at it again on Report Stage.
With that assurance from the Minister I will not move the amendment, reserving my right to have a suitable amendment taken on Report Stage. In the meantime I appeal to the Minister on humane grounds to look at this.
Amendment No. 10 not moved.
Question proposed: "That section 4 stand part of the Bill".
At this stage I may have a better opportunity of making the point that I have been endeavouring to make. I accept that the Minister has at his disposal previous Acts in which specified periods are stipulated, but in regard to the section we are discussing I would ask him to consider both of the periods mentioned between now and Report Stage. I consider the changes I sought by way of amendment to be justified. As the section stands, a person cannot be dismissed after an apprenticeship period of six months has elapsed. This provision may not be entirely fair to an employer because, as a result of the block release situation which is in operation, an apprentice may be away from the establishment where he is serving his time and, consequently, may not have been assessed as to suitability or competency by the personnel of the company employing him. With this in mind I have been pressing for a period longer than six months. I would consider a 12-month period to be much fairer. This would bring the provision in line with the main time section of the Bill which provides for a year's continuous service. Also, the longer period would give an employer a better opportunity to assess the suitability of an apprentice.
While accepting the need for all this legislation we must be fair to both employer and apprentice. In particular, we must have regard for the fears today of the small employer. This is the category which represents a large proportion of our total number of employers. While the six-month period may be somewhat unfair to an employer, a one-month period could discriminate against an apprentice who would qualify.
In relation to many trades and skills the position is that a person is retained in employment on the completion of his apprenticeship. In such cases the question of a time limit would not arise but the apprentice about whom I am concerned is the one for whom permanent work will not be available on the completion of his term of apprenticeship. The person who has been a good apprentice is the one who can be discriminated against most in this sort of situation, because if this legislation is enacted an employer will not retain for longer than a month a person who has just qualified if he does not need him permanently. In other words the choice that would have been available to the person who had qualified would cease.
Up to now the situation has been that, although an employer was not in a position to offer permanent employment to persons on the completion of their apprenticeship, he would probably retain them for up to six months in order to give them an opportunity of seeking permanent employment. That was a very human approach on the part of an employer but it was an opportunity which people who had been good apprentices deserved. Now, by way of legislation we are denying the employer the opportunity of retaining a person for the extended period. Likewise, we are denying the person who had completed his apprenticeship the opportunity of being retained for extra time.
The danger in this sort of legislation is that it may be harmful to some people by taking from them certain freedoms which they had the choice of exercising. For that reason I appeal to the Minister to look again at the section between now and Report Stage. I do not think the provision can be related to the redundancy situation. However, I accept the Minister's dilemma in that regard but I am concerned that many people may be reluctant now to extend a period of employment. Traditionally our people are wary of legislation. Perhaps this stems from their not studying legislation sufficiently, but my fear is that all of the Bills being introduced at this time in relation to this area of activity may scare small employers from engaging more than the minimum of workers, that they may be loath to expand. I fear, too, that the legislation could have harmful effects in relation to apprenticeship.
Apprenticeship may be one of the most important areas within the responsibility of the Minister. On many occasions the Minister has referred to the important role being played by AnCO in this area. While their role is not devoted entirely to apprenticeship, that activity constitutes the bulk of their work. Since the setting up of AnCO there has been a marked improvement and a desirable control in the standard of apprenticeship, but there must be a certain amount of flexibility available both to apprentices and to employers. I see very little justification for providing that at the end of a six-month period an apprentice comes within the terms of the Unfair Dismissals Bill, because there is the danger that if an employer has not made up his mind on the suitability or the competency of an apprentice after, say, five-and-a-half months, that employer may be over-anxious to find fault with the apprentice. In this way an apprentice could be discriminated against. From my own experience in this area I am aware that where most employers are concerned, and particularly small employers, the approach was to continue the young person's employment where at all possible after the period of apprenticeship had been completed, or, where this was not possible, to retain the employee long enough to give him the opportunity of seeking alternative employment.
The apprenticeship situation is of vital importance to the future of our country in terms of the increasing standard of technical expertise that we need. Consequently, I appeal to the Minister to consider the points I have made. It would be unwise to introduce legislation which would act to the detriment or what otherwise would be an amicable relationship between employer and employee. That does not mean that I do not see the necessity for having a time limit. I agree entirely with providing for a time limit.
I believe both time limits are too short. The six months should be extended to 12 months and the one month, which I regard as very harmful, should be extended to six months. The Minister may say an employer could take advantage of that situation. That possibility is there but it is a possibility only because someone has a low opinion of human nature or does not believe there is a great deal of good in most people. This seems to be a problem with this Government. Too many Ministers regard employers as bad characters. They mistrust them and they do everything possible to ensure they do not do anything wrong. The vast majority of employers are good people with good social consciences. I am not saying there are not exceptions. There are exceptions but that should not lead to our designing legislation to deal specifically with those who may set out to get around legislative provisions because, by doing that, we harm the vast majority and not just the exceptions. I would strongly urge the Minister to look at these periods again between now and Report Stage.
(Dublin Central): I support Deputy Fitzgerald. We welcome this legislation and other legislation designed to protect employees generally. My hope is that both employers and employees will seldom have occasion to resort to such measures. Creating a proper climate between employers and employees is to the best advantage of both and to the country generally. I appreciate the need for legislation but the problem here is whether this provision will be helpful to apprentices. That is the important point. I believe the time limits here are too short. I have had experience of several employers who go out of their way to facilitate apprentices at the end of their training. I have not known one employer who has let an apprentice go immediately he has completed his apprenticeship. Here I am speaking of small employers. A relationship is built up and very often the employers feel they almost have an obligation towards their apprentices, especially if they are from rural areas. They are interested in securing accommodation for them and concerned about their welfare generally. That is the kind of relationship that has been built up.
Very often employers have room for only one, two or three apprentices. When training is completed it is not possible to absorb these into the permanent work force. Very often, however, an employer will keep on an apprentice who has completed his training until such time as that apprentice can find permanent employment elsewhere. There is an understanding with the trade unions that this man will not become part of the employer's permanent work force. I am sure the Minister is aware of that. Under this provision an employer who keeps on an apprentice after training for a period of one month will then be compelled to make him part of his permenent work force and so he has no option except to let the young man go. This section will not help the situation. I can foresee problems arising and those problems will militate against the apprentice. The Minister referred to the redundancy legislation and other measures and said what we suggest would cause complications. I must confess I have not checked on that so I cannot offer any opinion here.
I wonder has there been abuse of apprentices in the past. I doubt it. One will always get one rotten apple in every barrel but, by and large, I do not think there has been abuse where apprentices are concerned. If the Minister accepted Deputy Fitzgerald's amendment or brought in something like it on Report Stage, it would contribute considerably to this section and would improve it in no small measure.
Deputy Fitzgerald has revised his opinion on the six months provision in the section. I think he is more concerned about the other provision. Six months is a fairly lengthy time and I have no specific opinion on it. I am concerned about the provision in relation to one month. None of us wants to inhibit employment. We must direct our attention to the provision of employment during the coming year. Every effort will have to be made to encourage employers to take on additional employees. We must have that in mind as our main principle. We must ensure that these Bills will not inhibit that fundamental factor. Every Bill brought into this House should be designed to expand employment.
Deputy Fitzgerald said certain employees are confused. They do not know what is contained in many of these Bills. They should be explained to them. They may have certain reservations about some of them. This Bill should not discourage people from expanding their businesses because without the expansion of established industries it is difficult to see how we can reduce our unemployment rate during 1977. Let us hope that Bills such as the Redundancy Bill and the Anti-Discrimination (Unfair Dismissals) Bill will be a contributory factor to providing employment and not have the opposite effect.
Deputy Fitzgerald maintains that section 4 will discourage employers from keeping on apprentices in their employment. We all know that it is easier to find a job when you are already employed. If you are unemployed for three or four months it is much more difficult to get employment. If you are in employment and go to a prospective employer and say: "I am employed at present and I can be highly recommended", it is easier to get a job. Sometimes an employer keeps on an apprentice for three or four months to help him out. There could be a close relationship between the employer and the apprentice and the apprentice could be kept on for five or six months while he is looking around for a job. On numerous occasions employers have telephoned other employers to try to place apprentices in other jobs.
This section provides that if the employer keeps on the apprentice for longer than one month he must keep him on permanently. He will not be allowed to let him go. That does not contribute to the whole structure of apprenticeships. I hope the Minister will look sympathetically at Deputy Fitzgerald's amendment. If it is in conflict with other sections of other Bills I am sure the parliamentary draftsman will be able to deal with that. From the human point of view and from the point of view of the apprentices, he will be doing a good day's work if he makes this slight adjustment in the section.
Has the Minister any comment to offer on the points raised?
No. I think we have covered them pretty reasonably already.
I do not think so. The Minister glossed over them.
Question put and agreed to.
SECTION 5.
I move amendment No. 11:
In page 6, subsection (2), to delete ",if" in line 3 and lines 4 to 9.
I move this amendment for very good reasons. Without paragraphs (a) and (b) subsection (2) reads:
The dismissal of an employee for taking part in a strike or other industrial action shall be deemed, for the purposes of this Act, to be an unfair dismissal.
I think that is correct, fair and right. The subsection in the Bill is qualified and the qualification creates a ridiculous situation. The qualification is if "one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part..."
It seems to me that if one person is dismissed on his or her own for taking part in a strike or industrial action that is an offence as the subsection stands in its entirety, but if two or more people are dismissed for taking part in a strike or industrial action it is not an offence. Surely that creates an anomaly and it is one which the Minister must explain very clearly to me. I want to tidy up the section because it would be unfair to suggest that a person taking part in a strike or industrial action would not come under the terms of this Anti-Discrimination (Unfair Dismissals) Bill. I suggest that is what the section conveys as it reads in its entirety. It conveys that two or more people can be dismissed without contravening the terms of this Bill. I suggest the subsection should end at the word "dismissal", in other words, that the dismissal of an employee for taking part in a strike or other industrial action shall be deemed, for the purpose of this Act, to be an unfair dismissal with no qualification. In qualifying the subsection we are suggesting that, in certain circumstances, it would be unfair for a person to take part in a strike or industrial action. I do not think that is so.
None of us wants to see industrial action or strikes. We all want to see that type of industrial action avoided and minimised so far as possible. To suggest, as the Minister does in this subsection, that in certain circumstances such participation could come within the terms or scope of this Bill is grossly unfair and creates an anomalous situation. Paragraph (b) refers to the re-engagement of a person. If more than one person is re-engaged it is not an offence. These two qualifications convey the impression that it is an offence to take part in a strike or other industrial action. I do not think the Minister intends to convey that impression, and the solution is to remove those qualifications. The subsection itself is adequate, and amendment No. 11 does away with any attempt to circumvent the subsection.
What I have been anxious to ensure by this provision is that no individual victimisation would result from a return to work after a trade dispute. To give an example: suppose that ten employees that took part in the dispute or industrial action, that one of those ten employees that took part in the dispute is dismissed and nobody else suffers any rebuke or punishment therefore, on the evidence it can be said that one has been singled out for very harsh treatment indeed. This section would protect such an individual as dismissal in the return-to-work situation would be deemed to be unfair and he would be covered by the provisions of this legislation.
Deputy Fitzgerald appears to read into this section something that is not intended by me. As I say, my concern is to ensure that the individual would not be picked out for harsh, discriminatory treatment. Deputy Fitzgerald raises the point that he is unhappy about the language that is used here. I shall have another look at it, but I think what I am concerned to achieve, namely, to protect the individual against victimisation, is adequately covered here.
I see what the Minister is aiming at but to get over the prohibition against victimising the individual, whom the Minister wishes to protect, all the employer has to do is to dismiss both Mr. A and Mr. B, and then it is no longer and offence, because subsection (2) (a) reads:
The dismissal of an employee for taking part in a strike or other industrial action shall be deemed, for the purposes of this Act, to be an unfair dismissal, if—
(a) one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part, or
Therefore, is it an unfair dismissal if one or more employees of the same employer have not also been dismissed. The employer knows it is an offence under this provision to dismiss Mr. A so he dismisses Mr. A and Mr. B, and it is no longer an unfair dismissal for the purposes of this measure.
I appreciate that the Minister never intended that this should be the effect of the subsection. However, this is the value of the Committee Stage of a Bill, that the Opposition can point out the pitfalls in proposed legislation. It is clear to me that, as the subsection is worded and with the qualifications attached to it, the employer has ways and means of getting around the legislation. It certainly does not stop the employer from doing what the Minister says he is trying to prevent him from doing. The employer has a loophole whereby there is no longer an unfair dismissal.
The section would cover a number of employees who would collectively feel themselves victims of unfair treatment at the hands of the employer. That is the intention and I think it is carried through in the section. In framing legislation dealing with the complex subject of victimisation there are several ways in which the same idea can be discussed; there are the pitfalls of exceptions and so on. It is difficult to ensure that it is comprehensive and covers all eventualities. I am satisfied that the section as drafted covers both individual and collective cases of victimisation in the return-to-work situation. However, I will give an undertaking that between now and Report Stage I will consider this again very carefully to see that I am correct in this opinion.
I appreciate the Minister's offer, but I fail to see how the provision covers more than one employee——
In paragraph (b), one or more such employees.
Yes, but this is the point. Both of these paragraphs are only qualifications to the main part of the subsection. The Minister is misreading it.
Several employees can take the protection of unfair dismissal as spelt out in the section. The Deputy's argument relates to the fact that the employer could escape the provisions of the section by sacking all, but he cannot.
As it is worded he can. I cannot see how an employer is prevented from doing that. The only difference between (a) and (b) is that one refers to dismissal and the other refers to re-engagement. I do not think the Minister is correct.
We do not appear to be in disagreement and I assure the Deputy that I will reassess the position. I am confident the intention is carried through clearly.
The intention may have been there but I advise the Minister to look again at this between now and Report Stage. The subsection at present is wide open; the door can be pushed open and the Minister should close it. In those circumstances I agree to withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 6, subsection (4), line 25, to delete "which would be reasonably suitable to him" and substitute "to which he is suited by experience or qualification".
This subsection refers to an offer of "re-engagement". Throughout the Bill the term "re-engagement" is used but I am not sure why he used that word in preference to "reinstatement". Does it indicate a new term of contract from the time he is re-engaged rather than being reinstated to the position he held prior to the unfair dismissal? There may be a valid reason for using the word "re-engagement" but it conconveys a different interpretation to me. I do not think the section goes far enough. It indicates that the decision is with the employee. One can have an employee who may not be the easiest person to handle and if he indicates that the position is not "reasonably suitable to him" he cannot be given that position. Who determines whether or not a position offered to a person re-engaged as a result of an application under this Bill is suitable? It appears from the wording of the section that the only person who can decide is the person who is being re-engaged. I suggest that the section be changed to include my amendment.
I want justice for the person being re-employed and justice for the employer. Both sides must be considered in such a situation. As the section reads at present an employee who may wish to be difficult is in an advantageous position; he can say that a position is not suitable to him, that he does not like working in a certain part of a business concern or offer some other such trivial excuse. My amendment is fair to the employee and the employer. There is a danger that the Government believe that many of our employers are cowboys but this is not true. The same applies to employees but it is possible to have a difficult employee who would take advantage of a situation which is open to him under this section. My amendment would strengthen the section. It should be remembered that there is a danger in all this legislation, particularly where we have so many people engaged in business in a small way, of personality clashes between local people. We should not copy legislation introduced in other countries. We must be careful. In addition to providing legislation such as this which I agree is necessary we must not interfere with the social or local environment that exists. It would be more equitable to have a person re-engaged in a job to which he was suited by his experience or qualification than to be re-employed in a position "which would be reasonably suitable to him".
I should like to know who decides this matter. Will the rights commissioner travel to places like west Kerry and see if a job is ideally suited for a person? Will the members of the appeals tribunal travel or will a judge of the circuit court make the journey? As I read the section only one person can decide, the person who has been successful in his claim. I do not think that is fair.
Again, I do not think there is any great difference between us on this matter. The Deputy feels that excessive powers of choice are given to the employee who invokes this legislation and he seeks to limit the power of choice. It depends on how one looks at this situation. Some employers might say that it would be limiting them excessively if the legislation stated "experience or qualification" even though the Deputy would say that it would give them some advantage which they do not have in the section as drafted. It could be an interesting argument. Subsection (4) states:
In this section a reference to an offer of re-engagement, in relation to an employee, is a reference to an offer (made either by the original employer or by a successor of that employer or by an associated employer) to re-engage that employee, either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable to him.
Deputy Fitzgerald seeks to delete "which would be reasonably suitable to him" and substitute "to which he is suited by experience or qualification". The Deputy's amendment ment would not improve the section at this stage. Section 7 relates to the adjudicating bodies, such as the tribunal, the rights commissioner and so on, and they would obviously have a great say in building criteria. I do not want to tie their hands too much because common sense must prevail for the good of both employers and employees. I am considering a slight amendment when we come to that section. I would not accept the Deputy's amendment at present because it ties the matter too tightly. You can tie things too tightly in legislation of this kind. Where you have appeal bodies which come under the normal structural institutions in industrial relations they will increase their experience in this area, as they deal with cases, and I would prefer to leave it to the good sense of such bodies. What the Deputy has in mind is to open it up to the rule of common sense which must operate in these sections. I would put it to the Deputy that it could be suggested that his section may work in opposition to what he intends. We will return to this matter under section 7. I am proposing a slight amendment under section 7 and perhaps the Deputy will see that it is more in his direction at that point.
I agree with the Minister's point that legislation should not be too rigid and that a certain amount of common sense and flexibility must prevail in legislation of this kind so that intervening bodies will not have their hands tied too tightly by the terminology used. The Minister has said that he is not happy with the terminology of my amendment. I am not claiming that my amendment is the ideal solution to the problem. If the Minister is prepared to look at section 7, he should also look at section 4. When we come to section 7 we could possibly agree on similar terminology which would be acceptable to both sides. I would be happy with the situation that the Minister agrees to look at section 4 in relation to section 7.
I will be introducing an amendment on Report Stage.
In relation to what we have been discussing?
And also in relation to section 7.
Amendment by leave, withdrawn.
I move amendment No. 13:
In page 6, subsection (5), line 30, after "of the exclusion of" to insert "an employee or".
This is a minor amendment. Section 5 (5) reads:
In this section—
"lock-out" means an action which, in contemplation or furtherance of a trade dispute (within the meaning of the Industrial Relations Act, 1946), is taken by one or more employers, whether parties to the dispute or not, and which consists of the exclusion of employees from one or more factories,...
The Minister may have omitted by mistake or otherwise the word "employee". I do not want the individual employee to be excluded from this section because of a drafting error.
The Deputy requires the insertion of the singular "employee". "Lock-out" is a standard definition used in legislation of this type which is generally couched in collective terms and is taken to include a singular situation. It would not be my intention to exclude individual employees. The reason it is in the collective is that we take it to include such a person according to the definitions used. I will look at this matter between now and Report Stage to see if anything further can be done to clarify the matter. The terminology used is taken from previous legislation which is couched in a collective sense.
A lock-out situation is always referred to in the plural because a group of employees are normally involved. As we are discussing an Unfair Dismissals Bill I want to be sure that individuals are not excluded and that an employee would not suffer as a result of the wording of the section. I am quite prepared to accept the Minister's undertaking to examine the matter before Report Stage and we can, if necessary, make an amendment on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 5 stand part of the Bill."
We have been discussing section 5 in detail. We have brought some questionable areas to the Minister's attention. Time was when I regarded the Committee Stage of a Bill as being somewhat boring but recent times have shown me that it is probably the most important Stage of a Bill. We have raised certain points with regard to this section and the Minister has undertaken to examine them between now and Report Stage. This is important because much of this legislation is new to our country. The industrial situation here is somewhat unique due to the fact that we have so many small employers. I would be a little bit scared that some of these employers might become frightened of employing people because of all the inhibitions and discriminations referred to in the package coming in now. Undoubtedly the desire and the need for it is there but let us maintain a certain amount of flexibility.
In a recent radio programme I heard the Minister refer to this Bill among others as helping to improve the rather serious industrial relations situation we have had in the past year. He did admit, in fact, that few of those disputes which contributed so many of our man-days being lost were caused by unfair dismissals. It is important at some stage of this Bill that statistics be available to the House regarding experiences of dismissals as such. The Minister may not have all these statistics available to him at the moment but we certainly should have some statistical information relating to dismissals over the past few years.
I would strongly urge the redrafting of subsection (2). While I appreciate and support the intentions, in my opinion the intentions have not been achieved in the subsection as it now reads. There is a large loophole here which must be closed. While the amendment which I put down may not have been the ideal solution I think it would have effectively closed that loophole. I believe the subsection must be completely redrafted.
Before we leave this section I would ask the Minister to indicate why he has used the word "re-engagement" rather than "reinstatement". Is there any significance attached to it? If a person is re-engaged it conveys to me that he or she may be re-engaged on a new contract. When a person is reinstated I take it to mean that such a person is reinstated to a position already held within an existing contract. Because we will be coming to it later I would ask the Minister to explain why "re-engagement" is used. Does it convey the meaning that I read into it as against the meaning that reinstatement conveys to me?
On that last point Deputy Fitzgerald is generally correct in his opinion about the legal difference between reinstatement and re-engagement, re-engagement being return to employment and reinstatement having the more specific meaning of the particular post. I would stress that we must allow some flexibility. There may be circumstances in which the adjudicating bodies would say that re-engagement was sufficient response in a particular situation. It may be that in a certain sense they would require some flexibility in settlements of this character and that is why in general I go for the use of the re-engagement concept rather than reinstatement. We will be discussing this at a later stage.
When we have the chance of discussing this later we should discuss the possibility of using both words. I am not so sure that re-engagement may not mean that a person's priority or seniority could be lost.
Question put and agreed to.
SECTION 6.
I move amendment No. 14:
In page 6, subsection (1), line 40, after "there were" to insert "serious".
We are coming to the bones of the Bill, to the unfair dismissal. In moving this amendment it is important that the Minister should insert the word "serious" here. Subsection (1) states:
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were grounds justifying the dismissal.
In any such legislation the word "grounds" must be qualified and I am suggesting in this amendment that there must be serious grounds justifying dismissal. Very early in this Bill, possibly on Second Stage, I said that ideally there should never be an unfair dismissal, if there is a dismissal at all. It is important that nobody would even consider a dismissal under any guise, unless there were serious grounds. I would urge the Minister very sincerely to accept this amendment. There is no doubt that his beliefs would be the same but in this House we cannot just talk about grounds. We must talk about serious grounds. For that reason I am moving this amendment and expect the Minister to accept it.
In section 6 we provide for the basic principles that must operate in relation to unfair dismissal. We set down the basis on which the dismissal of an employee will be regarded as unfair unless, as it states, "having regard to all the circumstances, there were grounds justifying the dismissal". Deputy Fitzgerald suggests the inclusion of the description "serious" grounds.
Later subsections in this section set out the specific grounds on which dismissal will be regarded as unfair and I believe that we are sufficiently specific in this rather complicated situation. I know we keep harking back to the necessity of permitting flexibility but I only make this point since I know that the bodies that will have investigatory powers under this legislation, the rights commissioner and the tribunal are as one in their representations that we should allow as much flexibility as possible to the members of such bodies when it comes to their intervention in individual cases. I know that in suggesting this amendment Deputy Fitzgerald seeks to buttress, as he sees it, the undefended position of an employee whose case might be adversely affected without the inclusion of the reference to "serious".
Here we are speaking about a very small number of employers. As we know, in most cases employers act with discretion and with respect for the individual. As has been expressed elsewhere, however, there have been lapses which in some instances have given rise to unnecessary disputes and it is to cut off this potential area of conflict that the Bill has been introduced. That is its basis.
It could be said that the minority of employers we have been talking about could be affected in another way by this legislation if the word "serious" were included. I am referring to employers who would show lack of consideration for their employees. This would give employers an unnecessary argument with which to defend their conduct. The employers could plead the seriousness of the grounds for dismissal. The Deputy may see the inclusion of this word as a buttress of the individual rights of employees but, as I have explained, it could go the other way as well. In legislation of this kind we should seek to lay down criteria which will be as clear as possible but we should not seek to be unduly specific. If we were, we would simply be hampering the rights commissioner or the tribunals or the courts. I have confidence in the personnel of these tribunals and for that reason I do not think it would be to the advantage of employees if we introduced very specific criteria into legislation of this kind.
I am sure the Minister will have noted that subsection (5) states as a guide to the tribunals:
In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
I take it that to justify a dismissal one of two things must happen: it must be precisely within the terms of subsection (4) or there must be "other substantial grounds" justifying the dismissal. That is what Deputy Fitzgerald has been trying to get the Minister to acknowledge. Indeed, it is precisely the Minister's wording in subsection (5)—the grounds must be substantial. Therefore, if the Minister is to be consistent in so far as the provision in subsection (5) broadens the scope of subsection (4), it must be included in the introduction to subsection (1) because subsection (1) seems to relate only to grounds justifying a dismissal, whereas subsection (5) refers to "other substantial grounds". I do not know if that has escaped the Minister's attention.
Here Deputy Fitzgerald seeks to insert a word with the same impact as "other substantial grounds" have in subsection (5). The Minister's reply seemed to be an argument against what subsection (5) clearly states. We have an obligation to provide an outline for the benefit of the rights commissioner or the tribunal or the courts. We must provide precisely how they are to interpret the legislation. It is not enough to leave it entirely to their discretion. I do not think any court would want that situation. They would want that we would be as clear and precise as possible in the legislation, that there would be a statement of the grounds justifying a dismissal, an even more precise statement than is to be found in common law. Here we are introducing protection provisions in addition to the protection provided in the common law where the expression always used has been a reference to the misconduct of the employee.
For these reasons I cannot see why the Minister would not agree to some clearer statement. What would be subjective grounds from the point of view of the employer would not be objectively substantial ground. The insertion of the word "serious" would help to make it clearer that it was not just a subjective test but that the employer would have to fulfill well established norms in this respect.
I pointed out to Deputy O'Kennedy that section 6 (1) refers to tribunal decisions. It is the substantial leading statement on what should influence tribunal decisions, whereas section 6 (5) which he refers to requires the employer to advance substantial grounds. The tendency of the legislation here can be seen. It is for the employer to advance substantial grounds but section 6 (1) refers to the criteria for the tribunal themselves. When Deputy O'Kennedy takes that into consideration he will see the line of consistency. He will see that we are referring to different functions in these descriptions.
Surely the criteria which will guide the tribunal must be precisely the same as those which guide the employer. Otherwise——
No.
The employer must be entitled to know the kind of criteria the tribunal will be finding.
They are not set out.
They are not. They are set out as regards four areas but we are also concerned with other grounds in addition to these four.
I would point out to Deputy O'Kennedy that it is not what the employer thinks. A very small number of employers would be affected by this legislation. The tribunal would be independent of the employer. In section 6 (5) we are saying that:
...it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
There is the onus on the employer to say that here is a substantial ground which the tribunal may or may not accept. It is for the employer in that case, whereas in section 6 (1) we are talking about the general ground rules for the tribunal.
Yes, but the ground rules for the tribunal as I find and what the Minister is saying are rather different. It must be only a procedural difference. Surely the grounds which the employer must advance to justify will have to fall in line with the grounds which satisfy the tribunal, otherwise there will be two different interpretations of what we intend.
It will be an employer's defence, as stated, where he will be able to use those substantial grounds and it will be for the tribunal to call in the Act to see what qualifications he can bring. The guidelines for the tribunal are set out in section 6 (1) and section 6 (5) is not addressed to the tribunal.
Surely if it is addressed to the employer and states that there must be substantial grounds justifying dismissal, it only makes sense to notify the tribunal, so to speak, that it is for them too and that their finding must be based on substantial grounds, the same terms as the Minister has used in section 5.
That would be altering guidelines for the tribunal to shift balance very much in favour of the employer.
Is the Minister saying that the tribunal would not be capable of interpreting what would be substantial grounds? Is he saying that by introducing the words "substantial grounds" in subsection (1) we are in some way limiting the power of the tribunal? It seems to me that if the employer has to specify substantial grounds as defined in subsection (5) then the tribunal should also be concerned to find substantial grounds. Otherwise there could be the case of an employer saying: "Well, these were substantial grounds as I saw them" and the tribunal saying: "You may have thought they were substantial grounds. In fact, so far as you saw they were substantial grounds and you believe they were, you are protected"; whereas if the word "substantial" is introduced in subsection (1) the tribunal would then be able to say that they were not substantial grounds, that the employer may have though they were but they were not. Therefore, the same criteria would be applied under subsection (1) as under subsection (5).
I thought initially that there must be some, perhaps, understandable omission on the part of the draftsman, to use exactly the same terminology in subsection (1) as in subsection (5) because those are the only subsections in a sense that generalise on the position. Subsection (4) gives specific exemptions. Subsections (1) and (5) generally extend the position. I feel that this is a draftsman's exclusion and now the argument that the Minister is trying to make does not stand out.
I am only making the point that the Deputy sees some consistency between subsections (1) and (5). I think he accepts that the directions are given to different bodies in both cases and there is an old common law rule that you do not start reciting rules and seeing some consistency between them when applied to two things. It is obviously a different situation where section 6 (1) relates to the powers of a tribunal and how they should operate and section 6 (5) addresses itself to grounds for an employer which need not necessarily be acceptable to the tribunal. It is obvious that using similar language and addressing it to a tribunal as in section 6 (1) as is sought here would mean that it could be argued as giving extra grounds of protection to that rather small number of unscrupulous employers who will be affected by the passage of this legislation.
I know that Deputy Fitzgerald did not intend that in anything he said here. It was the reverse in fact. He sought to protect. He saw the individual employee, perhaps, needing further protection and he made it clear that that was why he suggested this matter of serious grounds. I do not think that there is substantially a great deal between us, considering the approaches we have had here. Having set out the grounds under section 6 and having set out the criteria on which the tribunal could deem an unfair dismissal had taken place—membership of a trade union, religious and political opinions of the employees, race or colour of the employee, pregnancy of the employee —we list out the various areas where, if dismissal were to take place, the tribunal would say that was unfair right away without a great deal of investigation. There would be in each case some investigation.
It is my general direction in this legislation to avoid being over-specific in such sections on directions to the tribunal. We are dealing here with a body which will be concerned mainly with industrial relations problems. These problems and disputes are very often settled by people who know the practical problems that arise in this area. I do not wish to see any legislation of mine affecting the scope of the usefulness of such bodies. It is my fear that in our anxiety to protect either one interest or the other as we look at the sections, we would create rather than remove obstacles to the effectiveness of such bodies. That is why in general I ask the Deputy while I would not agree with his amendment seriously to reflect on this question between now and Report Stage and if he still feels very strongly on Report Stage and I also feel very strongly on that Stage, we can come back and express any differences we might have at that point.
My concern has been to ensure adequate protection to the individual employee, not to give too great a hostage to fortune to those employers against whom this legislation might be invoked and over all not to neutralise the effectiveness of tribunal bodies who, after all, will make or break this legislation. They will have to look at the general criteria and operate the Act, when it is passed, successfully on that basis. I do not think they would thank the Oireachtas if we were simply to clutter up all of these sections with too many specific references to how they should proceed, beyond laying the general ground rules.
I think the Minister is making a little mistake regarding subsection (1). I do not see it primarily as being addressed only to the tribunal. I see this as a subsection of a rather important section, probably one of the most important sections of this Bill. I see this subsection directed to all people concerned. The interest of the tribunal or of any adjudicating body is seen only if and when an offence takes place or when the Act is contravened. I would prefer to see this Bill going out as a deterrent to any case ever going before a tribunal or rights council. I know that is reaching for the moon and that is not going to be achieved.
I am not going to cavil at words. Deputy O'Kennedy said that "substantial" is used in subsection (5). Section 6 is sub-titled "Unfair dismissal" so we are now getting down to the bones of the Bill. This is one of the most important sections of the Bill. I would like to see it spelt out there that there are serious grounds for a dismissal. I would have expected the real strength of the Bill to be in that subsection. I would say here: "subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were serious grounds justifying the dismissal". This subsection, when the Bill becomes law, transmits a message not only to the tribunal, the rights commissioner and all the other people who may be concerned at a later stage but also to the real people concerned, the employers and the employees.
We should remember the old Chinese doctrine that the prevention of illness is far better than curing an illness which has occurred. If we can convey to employer and employee alike not just that there were grounds justifying the dismissal but that there were serious grounds for justifying the dismissal we would have done a good day's work. I would prefer to see the matter dealt with that way. I ask the Minister to accept the amendment, giving him the liberty to use another adjective, if he wishes, instead of "serious" but implying the serious grounds needed.
Subsection (4) talks of the conduct of the employee which we will deal with in greater detail later. Normally, the term that justifies unlawful dismissal, even under common law, is the misconduct of the employee as distinct from his conduct. If one wants to use the Minister's phrase there must be serious misconduct. Let us take any case of established grounds justifying dismissal in the law as it stands at the moment. If we take dishonesty it would have to be serious dishonesty which affects the employee or the relationship between the employer and the employee otherwise even under the existing common law all the precedents indicate that any trifling dishonesty would not be sufficient to justify dismissal. If we said dishonesty without qualifying it it would be open to a difference of interpretation.
In the law as it stands at the moment an attempt is made to ensure that the employer understands his obligations the same as the employee understands his and their contractual relationship one with the other and that the court which adjudicates on it will look into the contract they entered into and will interpret it as they saw it. If we tell the employer in subsection (5) that substantial grounds must be shown to justify dismissal, surely we must in subsection (1) tell everybody, the rights tribunal and the Circuit Court, if it comes to that, that the grounds referred to in subsection (5) of section 6 are substantial grounds.
The same criteria must be applied by the rights tribunal as are imposed on the employer. I cannot see anything to justify the Minister's narrow interpretation of subsection (1) of section 6 where he says that this is the subsection that is addressed to the tribunal not to the employer. It is addressed to everybody, the people in this House, the employer and it is the terms under which the tribunal will decide whether or not there is an unfair dismissal. The subsection says:
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were grounds justifying the dismissal.
It does not say that this is for interpretation by the tribunal or that it is limited in its application to the interpretation of the tribunal. Subsection (5) is equally general except that it imposes the obligation on the employer.
I do not want to have a cat fight about this because I believe we are ad idem. I am convinced that it is a draftsman's omission. I believe the Minister, for some reason or other, got himself caught up in trying to justify the draftsman's omission. He is doing less than justice to this legislation by refusing to import into subsection (1) what is specifically spelt out in subsection (5). I do not want to go beyond that. We could leave it to the Minister to have the matter considered for Report Stage. If the words “substantial grounds” are inserted we are not tying the hands of the tribunal. We are simply asking for what the court and the tribunals are asking for every day, to have specific criteria to guide them in decisions they are being asked to take. I am quite satisfied that if the Minister does not import the same term into subsection (1) that he has in subsection (5) he will give rise to great confusion and there will be a lot of legal argument as to whether or not the same obligations are imposed under subsections (1) and (5) because the word “substantial” or “serious” is included in one and is not in the other.
There is not a very great matter at issue between us. We have covered the matter pretty adequately. It is true that the start of the section is addressed to the workers but specifically to the tribunal which will be interpreting it and it is true that subsection (5) is addressed specifically to employers as well as everyone else. I undertake to the House to have a look at this matter between now and Report Stage to see if we can eliminate the difference between us in this terminology.
That is accepted on the same basis that we can if necessary adjust my amendments.
Amendment, by leave, withdrawn.
Amendment No. 14a in the name of the Minister seems to meet amendment No. 15 in the name of Deputy Fitzgerald, so I would suggest we take amendments Nos. 14a and 15 together.
I move amendment No. 14a.
In page 6, subsection (2) (a), line 45, after "membership" to insert ", or proposal that he or another person become a member,".
We have no disagreement here. I am glad, by submitting my amendment, that I alerted the Minister to the obvious omission in this particular section regarding the person proposing to become a member of a trade union. I see he has slightly amended that by adding "another person".
I would have been happy with the other version but the draftsman tells me it is necessary.
I accept that entirely. Obviously then these amendments can be taken as being accepted as far as we are concerned.
Amendment agreed to.
Amendment No. 15 not moved.
Is that the correct procedure, Sir?
Yes. We now go to amendment No. 15a in the name of the Minister.
I move amendment No. 15a:
In page 7, subsection (2) (g) (i), lines 21 and 22, after "pregnancy" to insert "or matters connected therewith".
We suggest after "pregnancy" to insert "or matters connected therewith". I am informed this is a necessary drafting amendment made on suggestions made during consultations on the Bill with representative organisations. Its purpose is to take account in circumstances mentioned of certain disabilities associated with pregnancy.
We have no objection to this amendment either. It is used in the section already. It is merely a matter of using it in subsection (1) and I understand the reason for it. I shall have an opportunity of talking on the section later and on paragraph (g). In regard to the situation that may arise I am not terribly happy about that paragraph, but the amendment is accepted.
Amendment agreed to.
I move amendment No. 16:
In page 7, subsection (2), between lines 38 and 39 to insert the following new paragraph:—
"(h) the marital status of the employee".
I contend that the marital status of the employees should be included in this section. I do so for a number of reasons. On Second Stage I asked the Minister if this legislation would protect a girl working with a company whose services, because of getting married, were terminated. We have seen some issues in this respect recently. At the end of the Second Stage debate the Minister did convey to me that it was included under unfair dismissals. However, on going through the Bill I failed to find where that practice was covered. I suggest to the Minister that the fact that a person gets married—naturally it has been affecting girls up to now rather than males—should not constitute grounds for dismissal in the normal way; in other words, that it should be treated as an unfair dismissal.
My point is that this is not appropriate to this legislation. It is more relevant to the Anti-Discrimination (Employment) Bill which I hope we will be discussing shortly. It does not arise naturally in the legislation before us. In that Bill I think it is down as "marriage" rather than "marital status". That Bill deals specifically with sex discrimination in regard to employment and, in my opinion, is the appropriate place for references to marriage used as a basis of discrimination in the promotion or advancement of one's employment rather than the Bill before us. That is about the only difference between us here. In fact this is covered in its reference to "marriage" in the Anti-Discrimination (Employment) Bill.
I accept partially what the Minister says but one must differentiate. It has been the practice when women marry that it automatically ends their term of employment. That has become an accepted fact even in some of our leading companies. The question one must ask oneself here is: is that ground for a fair or for an unfair dismissal? In my opinion it is an unfair dismissal. I accept what the Minister says about the other Bill because I had wondered, first of all, which would become law first. When I asked this question specifically at the end of the Second Stage I was told by the Minister that it was covered under this Bill but I failed to find where. At present there are many issues here regarding unemployment and there has been expressed the point of view that perhaps there should be a further look at married women being employed while so many young people are seeking jobs. The tragedy of the situation is that both could be regarded as the sections of our community most affected when our unemployment figures rise, and they have risen in such alarming proportions.
But I do not think that is the issue here. I believe that on this amendment we are dealing with a slightly different situation. We are dealing with the issue of whether or not it is justified that a woman on deciding to marry automatically loses her job with a particular company. It is the rule in some companies. The Minister can say it properly belongs to another Bill. Surely the Minister must agree that the principle that a girl should be dismissed because of her decision to marry is most unfair. Of course she may wish to terminate her employment; that is an entirely different situation. God be with the good days under Fianna Fáil. When women married their services were retained simply because there were no young girls to replace them. That was the beginning of married women working in this country in private enterprise. Then we had the change in the public sector followed by the banks and so on. Yet some of our major companies have not followed suit. To ignore this completely in an Anti-Discrimination (Unfair Dismissals) Bill constitutes a big omission. I am not saying that my wording of the amendment is ideal. In Opposition one has not the advantages of the experienced draftsmanship available to a Minister.
The point at issue and which has to be brought to the attention of the House and the Minister is whether it is desirable to have the situation investigated with regard to unfair dismissals based on religious or political beliefs, on colour, class or creed. Is it correct then that we ignore the marital status? Perhaps my use of the phrase "the marital status of the employee" is not correct. But the situation about which I am really concerned is that of the girl who decides to marry within a particular company which automatically terminate her employment with them. I asked the Minister the question on Second Stage and he said it was covered under this Bill. Subsequently I have failed to find under what subsection or paragraph it was included. For that reason I am requesting the Minister to accept the amendment even if the wording used is not entirely correct. Of course, he would be at liberty to alter that and bring it into line with correct drafting.
This is referred to in another Bill before the House and it more appropriately belongs to that Bill. Dismissal on the grounds the Deputy has stated here would clearly be unfair under section 6 of the Bill before us. This would not be a ground on which anybody could be dismissed. The amendment the Deputy seeks to put forward is, in fact, covered in the Bill as it stands; the marital status of an employee could not be cited and it would be no defence for an employer to seek to justify a dismissal on the basis of the marital status of an employee. Specific reference to it will be made under the heading "Marriage" in the Anti-Discrimination (Employment) Bill, which I hope we shall come to soon.
I do not disagree with what the Deputy suggests here. I want to make it clear that if he can find any flaw in my statement in the context of the Bill that a person could not be dismissed on such a basis under this legislation, I would be prepared to listen to any amendment that would cover that situation.
I agree that the inclusion of marital status may not seem entirely necessary because it would not be a ground that would justify dismissal but the Minister has included "race or colour" of the employee specifically. These would not be grounds to justify a dismissal. He has included the existence of civil proceedings against an employer and that would not be a ground to justify dismissal under existing law. Neither would the political or religious opinions of an employee be grounds to justify a dismissal. Yet all these are written in here for some reason and if they are written into the Bill, even though they are clearly outside the scope of any grounds which justify dismissal, then we must ask why the Minister would not write in one which would be much more relevant—I think we would agree—in practical terms in conditions in Ireland today than would be religious or political opinions. It is very seldom that civil proceedings against an employer arise but the actual marital status of an employee arises regularly. Therefore, I cannot see that the inclusion of it would be any different from the inclusion of the others.
If we look through subsection (2) paragraphs (a), (b), (c), (d), (e) and (f) and even (g) are all spelled out there in the legislation. I do not want to be harsh on the Minister here but, to me, the insertion of those paragraphs could be reasonably described as windowdressing because under no circumstances would any court or, I think, any tribunal regard any of those grounds as grounds justifying a dismissal. Nevertheless, the Minister has written them into the Bill and I shall not ask him to take them out, but then I cannot see why he objects to writing in "marital status" which is much more relevant. Colour is not a major problem in Ireland—perhaps it will be but it should not—nor race, for practical purposes, while marital status may be. I think the Minister in section 2 really wants to set guidelines; he wants to establish principles and standards by which we would all be informed and perhaps in doing so he was quite right to include all those things that I would say are not legally necessary for insertion. If he were right in including them as standards he should certainly have included "marital status" and this I think would be more in line with what he is intending to do in both pieces of legislation.
The Deputy may say that problems of religion would not affect a person's employment. We live in an island where religion does bulk largely in terms of attitudes of groups and where people are killed because of their connection with particular religions. I believe that it is a matter above all others to which we should refer as an unfair ground. It is true that colour is not a factor in this country but I suggest that in the future it will be. It is already a factor in the neighbouring island to which we are very close in trade. Over one million Irish people live in that island and I think that race and colour will not be academic matters of discrimination in the years ahead.
Marital status is spelled out in another Bill and for that reason I see no need to duplicate it in this Bill. The other matters referred to are not covered in other Bills of an employment protection character. They are included here as criteria which I agree are not majority instances of complaints by employees but which are certainly potential areas of discord, if not now in the future perhaps: in other instances, echoes of certain quarrels already occurring in this island. Marital status is covered in the appropriate Bill and that is why I see no necessity to include it here. There is very little in argument between us. I think we are agreed that marital status would not be a ground for dismissal in the Bill even as it stands: all that is at issue between us is whether we should spell it out in this Bill. My point is that the provision is in the appropriate Bill. Nobody's marital status can be invoked as a ground for dismissal under the legislation as it is before us and I think Deputies opposite accept that.
We have instances and we can continue to have them. Would the Minister examine the matter between now and Report Stage and see whether he thinks it should be included among the other matters like "race". Meanwhile, we reserve the right to submit amendments on Report Stage.
The Deputy understands that there is no danger that an employee's marital status would be a ground for dismissal?
We can accept that, but the reason we had doubt about it was that religion, politics, race and colour were mentioned but marital status was not. On the basis indicated we are prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 8, subsection (4) (a) line 5, after "or qualifications" to insert "required by the employer at the commencement of the employment".
Some of this subsection must, of necessity, be very general. The amendment refers to the qualifications. Subsection (4) (a) gives what can be regarded as grounds for dismissal, grounds on which an employee may be dismissed, not coming under the terms of this Bill. In paragraph (a) we speak about capability, competence or qualifications. The reason I suggest an amendment here is that the qualifications needed for a specific job at the time a person is employed could well vary between then and when the dismissal takes place. While the employer could argue that he did not have the qualifications now needed for the job, when he was first employed he had suitable qualifications. For that reason I suggest that "qualifications" should mean qualified in itself and we should insert the words "qualifications required by the employer at the commencement of the employment".
As I said earlier, the majority of our employers are excellent people but there are some who may want to take advantage of any weakness in the Bill. The word "competence" or "capability" will give the legal profession many hours of arguing. Who decides what is "competence" or what are "capabilities"? These qualifications can be spelled out within reason in this Bill. I want to ensure that if a man needed certain qualifications when he was originally employed to do a specific job, and for some reason there may have been a change in the type of work he was doing, or in the qualifications needed, he could not now be dismissed because the qualifications needed were no longer the same as those needed when he was first employed. That is why I am asking for this change in the subsection. I am sure the Minister understands my reason, and, therefore, I urge him to accept this amendment.
I see the Deputy's point. I looked at all his amendments before today's business to see if they added to or subtracted from the effectiveness of the legislation. Having listened to him, I see that his concern was to tie the employer's hands more tightly to ensure that he could not ignore his obligations by giving the employee a job which was different from the job for which he was originally engaged.
I am still not satisfied that the Deputy's amendment does not lead to a confusing situation. The suggested qualification which the drafting of this amendment would seem to imply to the concepts already spelled out here of capability, competence and qualification could, I think, give rise to a considerable degree of confusion.
There is already in the existing paragraph a reference to the capability of the employee to perform the work he was employed to do. This appears to me to amply cover the kind of situation the Deputy is concerned to avoid. His amendment would lend unnecessary confusion to what is reasonably clearly spelled out in subsection (4) (a). Perhaps the Deputy would look at this point between now and Report Stage because I feel his amendment will not further protect the employee.
I am a little unhappy about this but I will look at it again between now and Report Stage, and will reserve the right to submit a similar amendment then.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 8, subsection (4) (b), line 8, after "conduct of employee" to add "which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties".
I strongly urge the Minister to accept this amendment because this subsection is too wide. Subsection (4) reads:
Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
...(b) the conduct of the employee.
We are asking that after the words "the conduct of employee" the words "which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties" be added.
Legislation must be seen to be directed in a particular direction. We can talk about the conduct of an employee during his leisure hours. I am not suggesting that an employee is entitled to misconduct himself at any time or in any way, and the majority do not, but from reading this section it appears that if an employee had taken drink one night after working hours, or if he became involved in a fracas or a difference of opinion which led to blows, outside his normal working hours, that could be interpreted as bad conduct for which he could be dismissed. The Minister, of course, will say that this would never be accepted by the rights commissioner or tribunals, but as I said earlier, the main purpose of this Bill ideally would be never to see a case going before the rights commissioner or tribunal.
I am satisfied that what is contained in this Bill covers only the conduct of the employee during his working hours but that is not enough. The paragraph must be extended to identify the conduct of the employee as being specifically related to his conduct on the premises or in connection with the job. That is why I put down my amendment. If the Minister accepts my amendment this paragraph will convey to every person reading it exactly what is meant by "conduct of employee".
The conduct of the employee takes its place with the other criteria set out in this section. Any tribunal looking at the matter would consider the conduct of the employee in its relationship to his work. If we further qualify "conduct of employee" by adding the suggested amendment, we will bring in complications which do not clarify the rights and duties of employers and employees, respectively, under this legislation. We do not make the job of the tribunal any easier. We may mislead employers. It is clear that "conduct of the employee" refers to the aspect of it which affects the work of the employee. The amendment suggested that we add "which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties". The performance of the employee has already been covered in subsection (4) (a) which is pretty comprehensive. As far as I am concerned the conduct of the employee outside working hours is his concern and not the concern of his employer.
I would not like to see a situation where an employer could cite the conduct of employees outside of working hours and say that it was detrimental to business in order to obtain dismissals. Based on the acceptance of this amendment, an employer could say: "sales of my bread have been affected in town because my breadman did this or that on a Sunday, and in a small town he is known to be my breadman, and his conduct has affected the repute of my business". It is possible that in a small town people will not support a business which employs a certain type of employee. In our anxiety to ensure that conduct relates to employment, by perhaps adding this amendment, we would endanger the position of the employee in some circumstances. I urge Deputy Fitzgerald to leave the matter as "the conduct of the employee". The grounds on which it would be unfair dismissal have been covered very amply.
We are getting new interpretations about conduct and misconduct. Misconduct to justify dismissal as defined in the law of master and servant must involve positive acts which are inconsistent with the due and faithful discharge of the duties of service. It must be positive misconduct and not just "conduct of the employee". There is a need to define misconduct which would justify a dismissal much more clearly. Perhaps it is too late to ask the Minister to look at the whole presentation of section 4 again. Section 4 is presented on the basis of capability, competence and conduct as being grounds for dismissal. It would be much more appropriate to adhere to the existing approach and refer to incapability, incompetence and misconduct. We have a situation here where we are introducing legislation where the conduct of the employee can be grounds for dismissal. I know the Minister means misconduct. Why it is presented as it is? Any decisions in relation to unfair dismissals will not talk in terms of conduct but in terms of misconduct. They will not talk in terms of capabilities but in terms of incapabilities and so on. For this reason paragraph (b) needs to be tidied up. It is misconduct which would be inconsistent with the faithful discharge of duties. If the Minister takes the view that misconduct outside the course of direct employment could never justify lawful dismissal, he is wrong. There will be cases where misconduct outside the actual employment can be such that it would be inconsistent with the carrying out of the employment. Take a case where a man is employed to drive a car and in his off-duty hours he is known to drive his own car consistently in a drunken condition, because that is outside the scope of his employment, does the Minister believe that that should not be grounds which would justify his dismissal as a driver? If a person had a position of regular trust and consistently proved in his ordinary dealings that he was not trustworthy, I imagine that should be taken into account.
This section is far too general. It should relate to the discharge of the obligations of the employment. As it stands at the moment, misconduct outside of service which would in no way interfere with qualification to discharge a duty could be interpreted as being "conduct of the employee" within the meaning of section 4. It needs to be defined much more precisely than it is. I accept the Minister's intention.
On a Committee Stage Bill when one starts to analyse line by line, the Minister might say that we are just looking for loopholes. By doing this we are doing a good service because someone else will look for loopholes after us and it is our duty to plug the loopholes in advance. While the precise wording of Deputy Fitzgerald's amendment might not commend itself to the Minister, the principle should commend itself to the Minister. Deputy Fitzgerald is referring to misconduct which is inconsistent with the discharge of the duties of the employment and this needs to be spelt out more clearly in this legislation.
I am not claiming that the cases I cited here are average or usual cases that would crop up under this legislation. Obviously, both sides are quoting exceptional circumstances that prove a particular interpretation. Both sides, for the best reasons, are suggesting changes to make the legislation more effective. In regard to the additional amendment suggested by Deputy Fitzgerald my only fear is that it would tie too closely subjective considerations of what is for the good of the employer in regard to a person's dismissal. In section 4 we are setting down the criteria which justify the dismissal of an individual —capability, competence, qualifications. These are justifiable criteria.
I see what Deputy Fitzgerald is aiming at. Deputy O'Kennedy mentioned the exceptions that would seem to fit in with the intent of the amendment whereby conduct after formal working hours could be cited as grounds for dismissal. I am loath to open up that whole area by spelling it out in this legislation. When we are not specific we depend on the good sense of the tribunal to judge individual cases, taking all factors into account. Some years ago I was acquainted personally with a case in which an employee was dismissed because of his involvement with another citizen in a slight altercation in a small town which resulted in a window being broken. The person concerned was dismissed from his employment because of the incident. At that time there was no legislation to protect against such dismissal and, although he was a member of a trade union, his union upheld the right of the employer to sack the man. While I am not in favour of people breaking windows for fun, none of us is perfect and I would consider it a grevious penalty that someone should lose his job because of his involvement in a misdemeanour of the type I have mentioned. I am reluctant to open up to that kind of interpretation, the criteria which justify dismissal. Perhaps Deputy Fitzgerald would consider this point between now and Report Stage.
The Minister has confused me. I gather from what he has said that, for instance, if an employee breaks a window maliciously during his leisure time, his conduct could be taken into consideration in regard to his continued employment.
I am saying that to spell out conduct that could be detrimental to the business of an employer would be to bring the tribunal into a new area of work. I suppose if someone were insane enough to continue to break windows, his conduct would be a matter for consideration in terms of his employment, but I would prefer to leave the criteria as simple as they are here and to leave to the discretion of the tribunal any matter not referred to. We would not be doing that by adding this amendment.
I must urge the the Minister to accept the amendment. I understood the example he gave the House to mean that legislation introduced now would govern that sort of case. That is a contradiction. I would have thought that this legislation would not cover such a case and that a dismissal of that nature would be unfair now as well as then. There is here the bald phrase, "the conduct of the employee". Surely the conduct must be related in some way to the job, but that is not what can be read from the section.
I would differ from the Deputy. Obviously, the conduct would be related to the job. It is better left as it is.
Therefore the argument the Minister is using is that this wording will give to the tribunal more flexibility in dealing with situations. The ideal situation would be that no case be sent to the tribunal, that both employers and employees, having read the legislation, would endeavour to adhere to it. But the Minister seems to think that the interpretation of this legislation is directed to the question of how the tribunal will interpret cases coming before them. This is something we must be very careful about.
We must endeavour to ensure that as few cases as possible go before the tribunal because the experience across the water, where legislation of this nature has been introduced, is that the administration costs have soared way beyond expectations and in excess of what can be afforded. The number of people connected with these tribunals has doubled. Of the cases coming before them, 90 per cent are related to the unfair dismissals legislation while 60 per cent have been adjudged in favour of the employers. The vast majority of all cases going before the tribunal are of a trivial nature. These are cases that have been described by a Daily Telegraph correspondent as the £50 settlement cases. In other words, in order to clear up a case quickly there is an agreement on both sides to settle for £50.
We must have regard to where they have erred and endeavour to have a situation in which only the minimum number of cases will have to go before a tribunal. That should be our aim. Let us not fall into the trap the British fell into and have too many cases going before the tribunal thereby doubling the cost of administration and delaying hearings. Long delays, particularly in a situation like ours in which there are many small employers, could be very harmful to employment prospects. For that reason I say the conduct of an employee in regard to this legislation must be related to his job.
There is another point on which I should like to take issue with the Minister. He said that the question of conduct being detrimental to the business of an employer or to the performance of an employee in the execution of his duties was referred to already. That is not so. In the previous paragraph there is reference to capability, to competence and to qualifications, but there is no reference to conduct that would be detrimental to the performance of an employee in the execution of his duties. Let us suppose that somebody comes in, perhaps on a shift, and he decides very unwisely, not being in a fit condition, to handle instruments. Such conduct would be conduct preventing him from carrying out the proper performance of his duties despite the fact that his capability, competence and qualifications would be beyond question. Paragraph (b) relates to the employee's work and its effectiveness. We can cite instances of extreme happenings but in legislation here we deal with the majority. There will always be exceptions. If we legislate specifically to control unfair dismissals and are influenced in that legislation as to how we should convey what we seek to achieve to a deciding tribunal we will be creating another monster. Monsters are undesirable and I would ask the Minister to accept this amendment in its entirety. The conduct must be spelled out as conduct related to his work.
I have explained my position and the Opposition have explained their position. I am not trying to tie this Bill to common law precedents. This is a new area of rights and there is no compelling reason, as I see it, for adhering to the concepts of common law, venerable though they are. As I have pointed out, we must not be over-specific in criteria because we will be relying on the good sense of the industrial relations tribunal. Very often common sense is more commonly adhered to in settlements before such a tribunal than is possible perhaps in a court of law. We have been proceeding very amicably all afternoon. I am sorry the Deputy is insistent that he does not see much point in reconsidering his amendment but, nevertheless, I would ask him to reconsider it. I am afraid I shall have to stick to the formulation I have and, if necessary, the House must divide.
I have had the experience in the lifetime of this Government so far, as I had in the lifetime of the preceding Fianna Fáil Government, of Ministers making a big issue of a single line in a Bill, a line obviously inappropriate, simply because some draftsman or civil servant had presented the Bill in that way. Ministers seek to justify the civil servant or the draftsman. Here the Minister argues that "conduct of the employee" as a ground for justifying unfair dismissal is better than "misconduct of an employee" in the discharge of his duties. This is the first time in statute law that the conduct of an employee may justify unfair dismissal. Of course, what is meant is his misconduct in the discharge of his duties. We have an obligation here to state precisely what we mean. This "conduct of the employee" is the very thing the Minister himself found so objectionable, and rightly so, some years ago. If a fellow goes and breaks a window completely outside of his employment, that is misconduct and could, in fact, be included. Whether or not the Minister would wish it to be is another matter, but it could be included under the Bill as it stands. What we are trying to get across to the Minister is that, even though a fellow is drunk —we find ourselves in that condition occasionally, unlike a lately promoted Minister—that is totally irrelevant to the discharge of his duties. It could be relevant in the case of a driver.
Obviously one must be much more specific than the Minister is here. The Minister talks about the common law being old and venerable and less concerned with human welfare than what is proposed here. Actually it is the other way round. Common law is the law which says ordinary conduct is not relevant as a ground for justifying dismissal. The common law says, in fact, that it is conduct inconsistent with the due and faithful discharge of the duties of servants. It is the law that protects the employees. What the Minister is defending here is a simple omission on the part of the draftsman or the civil servant. In my early days in the Seanad I was jocosely threatened with losing the Whip because I voted for good English. This kind of thing has been going on here for far too long.
If the Minister tells me he decided this is the way he wanted it to be and he instructed his draftsman to express what he wanted in this way, I would have some sympathy for the case he makes. I firmly believe he is now standing over a bad definition, an omission. In attempting to do so, he is ignoring the protections which have always applied. These protections are always limited to misconduct directly related to the employment of the person being dismissed. Surely that is what he wants to do in introducing this legislation and that is what we want to do in supporting it.
In so far as the employee can set this procedure in motion and go to a rights commissioner or a tribunal, as the case may be, by having something as bald as this, the Minister is leaving it wide open to all kinds of vexatious claims and vexatious defences or unjustifiable defences. Whether we are talking in terms of a tribunal, a rights commissioner, or a judge, the principle we always work on is that we cannot excuse our failure to be precise by simply saying we want to leave it to the tribunal, or the commissioner, or the judge and we do not want to tie his hands. We are not tying his hands by being precise. In fact, we are helping him to come to a decision on the basis of the criteria to which we referred. If we do not know what we have in mind as misconduct and how precisely to define it, we are asking too much if we ask someone else to define it in a way which we find ourselves incapable of doing.
We could argue this for quite a while. If the Minister looks at the law on master and servant and the grounds justifying dismissal, he will find one clear pattern running through it. The misconduct which justifies dismissal must comprise positive acts and not mere neglect or omission. It must be related very clearly to the employment and to the suitability of the person to do the job he is employed to do. There are many decisions based on that as a protection for the employee. Let us not at this stage change all that. I do not say it is the Minister's firm intention to change it but, if he leaves in something as bald as this, that is what he will do. It reads: "... the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee." If the Minister tells me that is what he intends to implement we are at odds on the effectiveness of the subsection.
That is a very reasoned case.
That is the way it is presented in the Bill as it stands.
Has all that effort been wasted?
It is not correct to say I am sticking to every title and tattle in the Bill. I have looked at the amendments very carefully. Naturally enough the original draft of this legislation was not mine. It came from the draftsman's office. I have paid reasonable attention to its construction at all stages and I have looked at the amendments as they were produced. I consider this amendment opens up new criteria for the tribunal which would not be to the advantage of the employee.
They are not new criteria. They are established criteria.
Wherever it was possible for me in conscience I have gone along with Opposition suggestions which were good. In presenting legislation to the House I have never been over-anxious to stick to every clause proposed. Legislation is the property of the entire House. Having heard this discussion, because of my belief that it would worsen the position of the employee, I am not disposed to accept the amendment. I am sorry to say that if necessary we can divide on it.
I am sorry, too, because I have been co-operative in any dealings we have had here. We have always co-operated with the Minister in the interests of effecting improvements in legislation for the sake of the legislation and for the benefit of the people. I am amazed the Minister is standing so adamantly by this decision. Is the Minister prepared to say he agrees with the sentiments of the amendment but not with the exact wording used and that he will introduce an amendment on Report Stage? I fail to understand why he is taking such a strong stand on it. Deputy O'Kennedy made the case of the importance of everybody being able to understand legislation.
We should not be concerned with the tribunal alone. In fact, the tribunal is the last thing which should enter into it. It should only be there in case it is needed. We hope it will never be used. The ideal situation would be that the tribunal would be there but never used. The bald statement "the conduct of the employee" should not be in the Bill. I am not forcing the House to divide. I would prefer the Minister to accept the spirit and principle of the amendment and alter the wording if necessary I want to insist as strongly as possible that "conduct" should be specifically related to the job or the employment, not the conduct of the employee as such.
The majority of people do not understand legislation. I was in this House for some time before I could read a Bill properly. Before I came into the House Bills read like double Dutch to me. The majority of people reading that subsection will read it as meaning the conduct of the employee. The members of the tribunal can study legislation but they will look on the conduct of the employee as being his conduct, not related to his work. For that reason I press the Minister to accept the spirit and principle of the amendment. I am quite willing to accept different wording if that is considered desirable. The subsection must be related to the job or the place of work.
I accept that it would be ridiculous to divide the House on a description of this kind. I feel strongly the amendment would worsen the position of the employee. I would ask Deputy Fitzgerald to withdraw the amendment and look at it again. I will look at the section again. If on Report Stage he is still convinced of the correctness of the amendment we can look at it again. As it is constructed at present I would not be happy with it and I could not accept it.
We will both look at it again?
I will look at everything again.
That is not an answer. Are we both looking at it again?
I want to make it clear that I do not want to make any temporary expediency agreements to which I do not intend to live up. There are certain sections of the amendment which I could not accept.
I have no objection to altering the wording.
I do not think this is of such serious import that we should call people in from their tea.
On the basis that we can both look at it again and with the reserved right to introduce an amendment on Report Stage, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 8, subsection (4), between lines 14 and 15, to insert the following new paragraph:—
"(e) the employee being absent from work without explanation for 12 consecutive weeks."
I want to draw this amendment to the Minister's attention. This is something which happens on rare occasions only. Under the Redundancy Bill employees who had apparently disappeared from certain companies or were no longer working, and who had submitted no medical certificate or notice of being unable to attend over a long period, turned up to claim redundancy payments. I would like to close any gap that might arise from a similar situation under this Bill. The Minister is probably more aware of such cases than I am. I know of one or two cases in connection with mining. I am sure the Minister has no intention of allowing people in this category to claim unfair dismissal, but I think an amendment such as this is desirable. If a person is absent from work without explanation for 12 consecutive weeks, in other words, if there has been a complete break-off from the company or business, the employer concerned could not be blamed for accepting that Mr. A had left his employment.
The problem which the Deputy's amendment creates is that imposing this limitation in relation to time missing from work could be against the interests of both the employer and the employee when the matter comes before the tribunal. It could be maintained, for example, that in a certain case the amendment covers too short a period and does not give the adjudicating body the opportunity to exercise a reasonable degree of discretion. Therefore, we would be working against the possibility of the tribunal being fully effective in a matter of this kind by putting down a figure which, of its nature, has to be an arbitrary figure selected out of the air and would have little to do with the circumstances of a particular case. The criteria already set out cover unreasonable absence from work. If we spelt out a particular number of weeks' absence there might be a case where a person was two or three weeks over this and we would not be assisting the tribunal in its work in this area.
Would the Minister tell me where this is covered?
Conduct.
That is too global.
It might be useful——
If the Minister is going to use "conduct" so globally I will have to divide the House on Report Stage. I think the Minister must be aware of at least two instances where people left a job and were still, under legislation, on the books of the company concerned. Naturally, if a person is drawing disability benefit or is absent for a long period for a particular reason, he is entitled to the full benefits of this legislation. Furthermore, I am not adamant on the matter of 12 weeks. The period could be altered; it is the spirit of this amendment that is important.
Every section of this Bill is the subject of discussion with both sides in industry, employers and unions, and it has emerged in relation to this question of people missing from work that there are more lenient arrangements made by certain companies than the 12 weeks suggested in the Deputy's amendment. The wisdom in this area is that for the first time an extremely good worker, because of some home hardship or some upset in his marital arrangements, might act strangely over a period and be missing from work apparently without just cause. These might be circumstances that the tribunal would have to take into account as mitigating the offence. It would be my fear that if we limit the discretion of the tribunal we might not be assisting them in their work. I have explained to the Deputy that this is covered in existing provisions.
Not the conduct one.
Admittedly we do not specify it, but there are many offences I can think of that one could regard as coming under the heading of unfair dismissal. In relation to every section I can think of additional things that could be added, but it is thought desirable to get general descriptions which cover these circumstances, allowing the tribunal in each case the discretion to be specific and to say: "Under that general heading is included the following specific circumstance which is now before the tribunal." If we spelt these out we would limit the usefulness of the tribunal.
I think the Minister is laying too much emphasis on the tribunal.
That is a fair point, but I think it is necessary to emphasise it.
I shall withdraw this amendment on the understanding that the Minister will consider it between now and Report Stage. I fully accept the point the Minister made that a person, for some marital or other social reason, might have a genuine case. I would hate to rule him out, but I do not want to allow in the cowboy who would capitalise on this legislation.
Amendment, by leave, withdrawn.
I move amendment No. 19a:
In page 8, between lines 14 and 15, to insert the following subsection:
"(5) (a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces under section 30 (1) (g) of the Defence Act, 1954, shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.
(b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces under section 30 (1) (g) of the Defence Act, 1954, was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof."
This amendment is necessary to ensure that certain civilians who are employed by the Department of Defence in security locations will enjoy protection under the Bill in relation to dismissals generally. The mode here is that the Minister for Defence can certhy that a particular dismissal was necessary for safeguarding national security, and in such a case the dismissal would be deemed not to be unfair. In all other cases of dismissal, civilian employees would be subject to the provisions of the Bill and the criteria of section 6 would apply.
I do not think I can cavil at this amendment. I fully accept the reasons for it.
Amendment agreed to.
I move amendment No. 20:
In page 8, subsection (5), line 15, to delete "In determining" and substitute "The determination" and in lines 16 to 20, to delete from "it shall be" to the end of the subsection and substitute "shall be determined by the Rights Commissioner, the Tribunal, or the Circuit Court as the case may be, to which the employee refers his dismissal for redress".
Here, for the first time, we may have a difference of opinion. We are all interested in ensuring that fair play exists for all sections involved in unfair dismissals but subsection (5) of this section clearly places the onus of responsibility on one side rather than the other. That subsection states:
In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
If an employer dismisses a person it is his responsibility to prove that the grounds for dismissal were such that it was not an unfair dismissal. I have suggested in my amendment that we change that and insert the wording: "The determination ... shall be determined by the Rights Commissioner, the Tribunal, or the Circuit Court, as the case may be, to which the employee refers his dismissal for redress." That fundamental change is necessary.
This legislation is desirable and I want to assist the Minister in its passage but I should also like to convey to him the fears being expressed by those who employ a small number of people. We depend to a great extent on such employers. The vast majority of our employers are decent people who are interested in their business, in the country and its well being and in their employees. They have a social conscience. There should never be an unfair dismissal and I am satisfied that the vast majority of employers would never like to have a dismissal of any sort. Of course, we have the small percentage who would not mind but for the majority of employers when they take such action more often than not it is under extreme provocation.
I realise the necessity to protect an employee in such a situation but the Minister has responsibility also to employers, particularly those who employ a small number of people. Whether a dismissal is fair or not the onus still falls on one person to prove there were adequate grounds for the dismissal, on the employer. This legislation in indicting the employer. I am not asking that the onus be shifted the other way because that would be equally unfair but I am suggesting that rather than having an employer a convicted person before he presents his case the determination as to whether a dismissal was unfair or not shall be determined by the rights commissioner, the tribunal or the Circuit Court. Anything other than that will mean that one person is going before the rights commissioner, the tribunal or the Circuit Court, guilty. He is being asked to prove that his action was correct.
The experience in Britain has been that 90 per cent of the cases before the tribunal were claims concerning unfair dismissals. A total of 60 per cent of the awards have been in favour of the employer and many of the other settlements were the £50 settlement I referred to. When such a claim is being considered both parties should face it on equal terms. Otherwise, there is an unfair advantage against the employer. We are legislating for the majority and the majority of employers, like the majority of employees, are decent people with a social conscience that is so desirable and necessary. They want to avoid dismissals at all costs. Because so many of our businesses employ fewer than 200 people there is a close relationship between the boss and employees. In local areas bosses are very reluctant to carry out dismissals.
For that reason I ask the Minister to reconsider this section. As the section reads, the responsibility rests with the employer and that may sound good to many people but we owe a lot to many employers. If you employ ten people and the conduct of an employee is so unbearable that, after tolerating it for a long time, you decide to dismiss him, the rest of the employees will realise how correct the decision was. Yet under this Bill the employee is entitled to claim that he was dismissed unfairly but it shall be the responsibility of the employer to prove that there were substantial grounds to justify the dismissal. It is putting an unfair onus on somebody who may have been tolerant and considerate for a long time. I would urge the Minister to change this section. Employers and employees have a part in this legislation and I ask the Minister to accept the principle of the proposed amendment.
The Deputy seeks to make the obligation in respect of the provisions of this legislation rest equally with employer and employee. I submit that in the nature of the subject matter with which this legislation deals we cannot arrive at that situation. The legislation is concerned with rules that will guide employers in relation to the dismissal of their employees. From now on, if an employer decides to sack a man he must abide by certain rules. The majority of employers will not be affected by this legislation because only for the most serious reasons do they bring forward dismissal procedures against their employees. In these troubled economic times what employer does not wish to retain good employees? In that minority of cases where employers have not been so scrupulous and have for casual reasons sought to dismiss their employees, this legislation will force that category of employer to introduce rules. Is it too much to ask that, in a matter which has such serious import for the employee, that is, his dismissal, the onus of proof should remain with the employer? I think it should remain with the employer. The employer is the person who says: "I wish to fire you from my firm". This Bill sets down that, even with the passage of this legislation, the employee who is incompetent will not be protected under subsection (4). He will not be able to hide under the provisions of the Bill and look forward to continuing the bad service he has already given. Likewise, this legislation spells an end to the career of the employer who sees nothing wrong in attempting to dismiss a man for casual or arbitrary reasons.
The majority of employers who realise the serious consequences for a man who has lost his job will not object to the idea that an employer must bear the onus of proof and bring forward reasons for dismissing an employee. The employer has the information on which he is anxious to act. This legislation provides for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified. Deputy Fitzgerald seeks to equalise the position between employer and employee. He proposes that both employer and employee submit their cases to the tribunal for a decision. We maintain that the burden rests with the employer. He must bring the case to the tribunal for decision. That is a fair way of dealing with such cases. As the employer initiates the action of dismissal it is for the employer to bring the case before the tribunal.
I do not agree with Deputy Fitzgerald's amendment and do not see any way of resolving the matter between now and Report Stage. If I were to accept an amendment along those lines it would strike at the heart of the legislation, because the onus does rest with the employer to bring his case before the tribunal. We set out the basis on which an employee can be judged to be fairly dismissed. We have noted the critical role of the tribunal, which must be given a great deal of discretion in the operation of these sections. It is clear that a certain burden of proof must remain with the employer.
This amendment would seem to favour the employer but it divides the responsibility between two persons. The Minister said at the outset that this Bill was designed for employers and employees. Of course it is. I have repeatedly said that the vast majority of employers are well disposed and endeavour to avoid dismissals at all costs and at all times. The weakness here is that the most incompetent employee, the most incapable, the one without qualifications and with the worst conduct record in the job, may be dismissed but he can bring a case and the responsibility to prove the correctness of that case is placed on the employer. I am not asking that it be placed on the other side, but I think it is fair to ask that the case be presented to the tribunal. After all, it is the employee who will, in fact, be bringing that case. We must remember that under our judicial system a person is innocent until proved guilty and it appears to me here that the employer is regarded as guilty unless he can prove his innocence.
I agree entirely with the Minister regarding cowboy employers and agree with any restrictions placed on them. They are a small minority but of course we must also condemn cowboy employees.
This Bill does not let them get away but you will accept that for the employee protection is required.
I accept that entirely. I want to try to help the Minister but I believe that on this issue the onus of proof is placed on one side. It is not correct for the Minister to say that he has all the information.
No, I am not the employer. The employer in this situation has information that leads him to make the decision to dismiss the employee.
Of course the employee will have that information as well. Despite a lot of man-days lost during the past year, we have good management/trade union relations in this country. In the case of most dismissals negotiations take place either beforehand or immediately they happen. I agree that this Bill will possibly prevent the loss of man-days as a result of dismissals. At the moment discussions take place between management and trade unions but there is no onus of responsibility placed on one side or the other. No such onus of responsibility should be placed on either side in this Bill.
I fully take the Minister's point about the unscrupulous employer and I would make no case or hold no brief for him or her, as the case might be, but I do not think we are legislating mainly for those people. They do not escape under my amendment because they will have to present their case to the presiding body. I certainly would not hinder the Minister in any way in his efforts to control these people. They are controlled under this Bill even with the amendment I suggest, because they will have to go and defend their actions before the rights commissioner, the tribunal or the Circuit Court. I suppose we will never see the end of such people, but the sooner their numbers are reduced the better. They are a small minority but the trouble is that the average, decent employers, who form the vast majority, have to go through the same procedure as these people. I do not think we should legislate for the people who need to be controlled at the expense of the decent people and to put them all through the same procedure.
We must remember that it is the dismissed employee who will bring his case to the tribunal and of course the employer in this case must also bring his evidence there or to the rights commissioner. I feel that they must enter that tribunal or face the rights commissioner on equal terms. One case will be decided one way and another the other way. As the section reads here, I believe it convicts the employer immediately he effects a dismissal. The vast majority of employers are reluctant to dismiss anybody. We have smaller industries here than in other countries. Staff and managers are based in a small area and they want to avoid this sort of situation and will go to extremes to do so. That is to be admired and encouraged. I admit that there are a few who will not act in this way, but we should not introduce legislation which will affect all employers in the same way. I submit that in the case of the vast majority of employers any dismissal which takes place will not be unfair. On the other side of the coin you will find the dice loaded against the "cowboy" employers. For that reason I suggest that the two should go to the rights commissioner, the tribunal or the Circuit Court with the evidence. This is important. It is not weakening the Bill in any way. I support the Minister in his efforts to get after the people who would try to abuse this legislation. We owe it to the good employers to give them at least an equal footing because very rarely would they be breaching the law under this Bill.
Briefly, the initiative on dismissals lies with the employer. The information will also be in his possession. The small employer mentioned by Deputy Fitzgerald will find the informal approach of the tribunal quite helpful in presenting his side of the case. In the United Kingdom the onus lies on the employer in legislation of this kind. So far as I know it also lies on the employer in some of the legislation I have looked at in other EEC countries. The reason, of course, is that there is not an equal relationship between employer and employee in matters of this kind.
I should like to make it clear that putting the onus on the employer in this sense is not an indictment of the employer. This is a normal case before our courts. He is not guilty in any sense. Referring again to the United Kingdom, where the onus is on the employer, a good number of cases are decided against the employer. I do not believe that both sides in the employment contract are equal when it comes to dismissal. I believe that there are sources of information open to one that are not open to the other. The initiation of the dismissal procedure lies with the employer. I believe also that we have set down rather careful criteria here which would prevent the employee who was clearly unsatisfactory from being retained in employment. For that reason I would ask Deputy Fitzgerald to accept the section.
I have made my point. We have had a good debate on a very important piece of legislation. However, I will consider tabling an amendment for Report Stage which the Minister may accept in a form slightly different from this one and more to the Minister's liking.
Amendment, by leave, withdrawn.
Question proposed: "That section 6, as amended, stand part of the Bill."
On a close reading of the section we will find it does not achieve anything very new, because if we look at the grounds for which a dismissal could be held to be unfair, as set out in subsection (2), we will see that none of them hardly needs to be stated at all. They are all manifestly grounds which would not justify dismissal. Indeed the Minister has included them here for some reason or other which is not clear.
For instance, I wonder why it was necessary to include in legislation of this sort any of the seven examples given of what would not justify dismissal. There are many others besides these which would not justify dismissal—for instance, marital status as suggested by Deputy Fitzgerald. We should not be stating things as specific protections which are not protections. The Minister may say that in the future we may have situations where race or colour could become issues, but there is nothing in our law which would justify a dismissal on these grounds or on the grounds of religion or creed. To say that we have a troubled island where religion and creed are being abused and being made the cause of division and even death is not the same as saying that religion or creed would be argued to be grounds for dismissal.
Therefore, it is not necessary to state them, but in so far as they have been stated, the Minister might have cast his net more widely and included such things as marital status, though that has been stated in the twin Bill, the Anti-Discrimination (Employment) Bill. If we are setting out social policy as distinct from legal obligations we should state the principles as extensively as we could so that they would be seen to be merely guidelines, commitments to certain principles.
The section might have been more extensive in its descriptions than it is. I do not think the legal application of this is of relevance one way or the other. Subsection (1) contains general provision in relation to a dismissal being deemed to be unfair unless there are grounds to justify the dismissal. That would need to be much more precise. The reference in subsection (1) should be exactly the same as it is in subsection (5). There should have been in the subsection some such word as "serious" as suggested by Deputy Fitzgerald, or "substantial" as the Minister has used in subsection (5). The Minister might have gone much further in relation to these areas. Instead of referring to capability, competence or qualification being a ground for dismissal he should have referred to incapacity, incompetence or nonqualification being a ground. He could have set out what would be incompetence on the part of the employee and he would have been much more in line with the law as it stands.
Has the Minister developed new protections for the employee in this legislation? He has not. Apart from the fact that he has brought in remedies which do not automatically exist, he has not. Breaches of the law are not here as clearly defined as they are in existing common law. An employee's conduct would relate to things such as disobedience or neglect to do what he was required to do. In existing law this is described as wilful misconduct, wilful disobedience or wilful neglect— there must be a positive and wilful decision on the part of the employee before an employer is justified in dismissing him. Legislation must ensure that no mere omission or neglect can be taken as a ground for reasonable and fair dismissal. That is the way the law clearly is expressed at the moment.
The Minister for one reason or another has seen fit to set out four categories of grounds which will justify dismissal but he has not spelt them out at all as clearly in the employee's interest as even the existing law does. There is no reference to wilful misconduct or to the fact that there cannot be simply a mere neglect or omission to do something. It is left vague, as we mentioned in the course of the debate earlier, simply the conduct of the employee. That is too vague for legislation purporting to introduce new remedies but not new protections. The remedies are new, this we concede. The protections themselves are not new and do not go half as far as the old ones. The misconduct as defined in law, even in the existing common law, has always to be related to positive acts and not mere neglects or failures. Under the Bill as it is at present an employer can take the view that a mere neglect or failure would entitle him to dismiss an employee. All this Bill says is that it shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee. That is not nearly precise enough to implement what I think is the Minister's intention and it is not consistent with the clear guidelines in the existing law.
I have a general criticism of this section. When we asked the Minister to be more precise in the interests of his own intentions his defence has been to counter by saying "I want to leave this to the tribunal or to the rights commissioner or the courts as the case may be". In leaving things to them we have an obligation to ensure that we tell them exactly what it is we are leaving to them and the grounds on which we are referring it to them. In that case again we have been far too vague.
I want to refer again to conduct. Conduct, particularly in Irish or Anglo-Irish terms, generally relates to what one might call moral or immoral conduct. A person can have perhaps what would generally be regarded as habits of immoral conduct outside his employment. He may have what one might call bad habits of immoral conduct outside his employment. He may offend the general standards of morality by his behaviour. He may hold views on moral standards not consistent with generally held views. I am not making a judgment as to which view is right. Be that as it may, we have rather narrow views of conduct or misconduct in the moral sense in this country. This Bill as it stands could enable an employer to say that because that fellow was seen to be cohabiting with somebody else, seen or believed to be forming illicit relationships with A, B, C or D, because he was seen to be dancing late and early in certain rather disreputable places, that is conduct which justifies the employer in dismissing him. But of course it is not. For that reason the Minister should, between now and Report Stage, reconsider the definitions here. I mention now the obligation on us before we introduce new legislation of this sort to be much more precise than we have been in this section.
The Minister might or might not have said whether illness as such could be grounds for dismissal. If he is going to refer to other areas of capability and competence—and colour and creed which in my view are scarcely relevant—he may before this Bill leaves the Oireachtas look at the law in relation to the illness of an employee and consider when and to what extent illness could be regarded as being such as would entitle the employer to dismiss a person fairly or reasonably. A lot of the cases that go through the courts relate to the issue of the illness of an employee, the chronic illness or disability as the case might be. I would have thought that if we are dealing with real cases, as is the Minister's intention, he would direct his mind to that as being an area which should be referred to in this Bill. He will find ample guidance in the existing law on master and servant to set down fairly clear guidelines as to when illness would not be grounds for fair dismissal and when it would be reasonable grounds for fair dismissal.
This is where someone is going to look at this Bill and say that we are charting a new course here. The points of the compass are not at all as clear in this as they were even on the old compass. Before this Bill leaves this House, certainly before it leaves both Houses of the Oireachtas, the Minister, in expressing in legislative form what he wants to do, should take a much closer and harder look at section 7. Obviously we all agree with the spirit of it but the approach is something that will be considered with serious reservations. I hope that by Report Stage we may find some of those reservations have been satisfied. Perhaps then the Minister will have an opportunity of looking at the approaches in sections 6 and 7.
I intend to be brief on this section. We discussed some amendments on it. It is, however, one of the very important sections of this Bill, setting out what is meant by unfair dismissal. The Minister has indicated that he will consider some of the proposed amendments between now and Report Stage. I urge him to do that. Probably by doing it he would improve the Bill.
I would like to give notice that on section (6) (2) (b) I reserve the right to introduce an amendment on Report Stage. This is the subsection that refers to the religious or political opinions of an employee. That, of course, I entirely support but I cannot understand why the Minister has qualified this by saying:
... being opinions the holding or expression of which do not directly or indirectly cause or result in damage to the interests of the employer,
It is particularly hard to understand the necessity for this qualification, especially on account of his approach to the conduct of the employee that we referred to earlier. In other words, I believe there is little necessity for this extra bit in paragraph (b). If the Minister decided to introduce it at all he should have said——
I will have a look at that.
I think the Minister should——
I am inclined to agree with the Deputy myself.
I intended to put down an amendment.
I would like to bring to the Minister's attention on this section, what would be fair protection for both sides, regarding the person who sets up in opposition to an employer. I do not mean, of course, an employee who leaves his employer and sets up on his own. This is competition and fair game and he is quite entitled to do that. I am concerned about the man who, while still in employment, sets up a sideline, maybe in a small steel fabrication or welding business in his spare time thus competing against his employer. The Minister should take a look at that issue to see if this could be protected.
I feel the word "competence" will give rise to many arguments and debates. I see the necessity for it but there will be many different interpretations of "competence" as to how it affects the employee in the execution of his duties in any particular job. I believe this does not appear in the UK legislation. I do not say we should follow rigidly their legislation but there must have been some reason why it was not included there. I believe the word will be hard to define to the satisfaction of everybody.
I believe the word "conduct" should have been covered more adequately. Section 6 is one of the sections which forms the bones of the new legislation. I urge the Minister to examine it very closely. I will also do so. I believe that unfortunately we are bound to have some unfair dismissals but we must endeavour to ensure that the legislation going through the House will prevent unfair dismissals as much as possible.
I am still concerned about the matters I raised on subsection (5). I am concerned about the employer being absolutely convicted before he has to prove his innocence. This may be fine for the indiscriminate person but it could be unfair to the sincere hard working employer of whom there are many at the present time. If the sincere employer has eight, ten or 20 employees at the present time he may be discouraged from expanding further because he may be fearful of the implications of subsection (5). I should like the Minister to look into this between now and Report Stage.
Question put and agreed to.
SECTION 7.
Amendment No. 20d is consequential on amendment No. 20a and both amendments may be discussed together.
I move amendment No. 20a:
In page 8, line 26, to delete "re-engagement" and substitute "reinstatement".
We discussed this earlier and I said I would be bringing the Minister back to it. I am not happy about the word "re-engagement". What redress has an employee for the time he is unemployed after an unfair dismissal until he is reinstated? We are told that the rights commissioner, the Circuit Court and the tribunal will look after him. Subsection (a) states:
Re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable to him...
We will be talking about "reasonably suitable" later. I am concerned about his re-engagement. I cannot understand why it should not be "reinstatement". The Minister said it was giving the tribunals greater latitude. I see that point, but if that be the case both words should be used. If only one word is used it should be reinstatement because if an employee is unfairly dismissed only two courses are open to him. He can be reinstated and restored to the position he held before his unfair dismissal or in an equivalent position to the one he held prior to the dismissal. Anything other than that would mean that an employee who was unfairly dismissed would not return to the same position he had previously. During the time between his unfair dismissal and his reinstatement he could have lost his place in the queue. He could have lost his seniority position. For that reason I am not happy that "re-engagement" is the word to use. It appears to me that if a man wins a case against an employer for unfair dismissal he has won his case absolutely, so he is entitled to be reinstated into that position.
There is an alternative. First of all, there is the alternative of a job suitable to him. I am not very keen on that. If the employee is right he should assume all the rights that he is entitled to. I see the reason for this word being inserted. I know there may be personality clashes in small companies or it may be a way out for the tribunal to sort out something and that it would be reasonably acceptable to both to get the individual who was the subject of an unfair dismissal back to work. I want to ensure that the man who is deemed to have been dismissed unfairly loses no rights. I am not satisfied that "re-engagement" in these circumstances adequately safeguards that position. If the man is re-engaged and some time has elapsed from the time he was unfairly dismissed to the time it took the rights commissioner, the tribunal or the Circuit Court to decide on his case, I assume that in the intervening period the man would not be working. What happens during that period?
During the period of his unfair dismissal is he reimbursed for that? It is important that we are told that. I am not sure that this provides redress for unfair dismissals. I am not sure about re-engagement and I want that spelled out clearly. Perhaps the Minister would reply to that point first.
As I indicated to the Deputy earlier this afternoon with regard to re-engagement and reinstatement, it is not true that as the tribunal looks at a case the choice before them is total rejection or total acceptance. There may be a middle position. The middle position may be to say that the person concerned contributed, to some extent, or gave some cause to the employer to seek his dismissal. They may say such was the cause, that whilst he is entitled to re-engagement, which is return to the firm with which he worked, to the place at which he worked normally, considered in that general sense, reinstatement indicates more clearly return to the job that he worked at. It is reinstatement to his former post. That is the common significance attached to both those terms in legislation of that kind. Do we want to say to the tribunal—as the amendment suggests—that it must be reinstatement when the tribunal may say "he is not entitled to reinstatement"? Since he is not entitled to reinstatement considering the circumstances of the case—and remember all of these clauses must be considered in the light of the actual circumstances of the individual case coming before the tribunal—although one may be fairly said always to cite one's defence in not wishing to be too specific in this legislation, whilst one may be accused of basing one's defence on the overriding importance of preserving discretion to the tribunal, it remains a fact that the tribunal has this pivotal role throughout this legislation and there is this great area of discretion open to them.
I believe that the amendment limiting it to reinstatement would tie their hands too closely. In that case, where the tribunal might be inclined to believe that a person was entitled to re-engagement, if we limit them by our legislation to reinstatement they might be inclined to say that he is not really entitled to reinstatement so all that is open to us—since this is the legislation—is compensation. Whereas if we left it open to re-engagement, as we are doing here, they could give a person the option of his job back— perhaps not exactly the same—in consideration of the elements of his offence or whatever the circumstances warranted. If they felt in sincerity that the employee was not deserving of full reinstatement they could reengage him.
However, we could make too great an issue of this. Deputy Fitzgerald's opinion of what is open to the tribunal and mine must await the tribunal in practice. We can merely set out the guidelines by which they should operate. I am quite willing to consider on Report Stage the idea of re-engagement or reinstatement which would cover both eventualities. It may require some consequential amendments. But, to cover my point that there could be this middle position and Deputy Fitzgerald's fears that a man might not get back exactly the same job we should leave maximum flexibility to the tribunal. I claim that re-engagement is there already but Deputy Fitzgerald, legitimately, would prefer to see reference to reinstatement. I would consider on Report Stage an amendment on re-engagement or reinstatement and bringing in whatever consequential amendments are required.
I was going to suggest that course to the Minister. I am somewhat afraid that, as the Bill stands reinstatement may appear to be ruled out. For that reason the Minister might consider the possibility of reinstatement or re-engagement. Of course, there will be consequential amendments. The only place a man can be reinstated is in the job he held prior to dismissal because I think reinstatement automatically implies that he holds any pension or other rights.
We will cover both eventualities to allow maximum flexibility.
I am happy in those circumstances.
Amendment No. 20a not moved.
Amendment No. 20b in the name of Deputy Fitzgerald and Amendment No. 20bb in the name of the Minister are related and may be taken together.
I move amendment No. 20b:
In page 8, lines 28 and 29, to delete "which would be reasonably suitable to him".
I am glad the Minister has come some way towards meeting me.
The Deputy will see I have an amendment here as well.
I do. We return to what we discussed earlier on the position of being reasonably suitable "to him". I see that the Minister, in his amendment, has substituted the word "for" for the word "to".
I agree, for example, that it is necessary to modify the provision as it stands. That is why I suggest "for him".
The Minister may even change that on Report Stage.
I may. At least I am going in the direction of the Deputy's own suggestions here.
"For" is certainly an improvement but I am not too sure it goes as far as I would like to see it go. It is certainly an improvement on "to him". In this section I had asked that that be deleted entirely but I would be prepared to consider accepting "for him" instead of the deletion. I would ask the Minister to look at that again on the same basis.
We shall see it again when it is printed but I would ask the Deputy to look at how "for him" appears to go in his direction.
I will reserve the right to put in an amendment on Report Stage. I take it the Minister will be looking at the previous section on the same lines. I presume that will be included in his revisions on Report Stage.
Yes, it will.
Amendment, by leave, withdrawn.
I move amendment No. 20bb:
In page 8, subsection (1) (a), line 29, to delete "to him" and to substitute "for him".
I am in favour of amendment No. 20bb with the reservation that if necessary amendments will be submitted on Report Stage.
Amendment agreed to.
I move amendment No. 20c:
In page 8, line 29, after "conditions" to insert "as laid down by the Rights Commissioner, Tribunal or Circuit Court".
Would the Deputy look at the amendment we were discussing? He might want to look at it between now and Report Stage. I wonder whether that amendment, if we consider the suggested addition, is already covered in the wording of subsection (1), and that qualifies subparagraph (a). Does the Deputy consider the amendment necessary in the light of that? From what I can see it does not appear to be necessary but he might wish to take another look at it. I am not in disagreement with what he is suggesting. We must retain for consideration by the adjudicating bodies the concept of the suitability in relation to the employee of any alternative position being considered as a remedy.
I take the Minister's point on that, that they have already been referred to. He may say there is really no necessity but I merely wanted to be absolutely sure that the conditions would be as laid down by whichever one of the parties concerned was adjudicating the case.
I will have a look at it again between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment 20d not moved.
Amendment No. 20d has already been dealt with.
I move amend-20e:
In page 9, between lines 3 and 4, to insert the following new paragraph:
"(e) The effect of the payment of compensation on the financial and employment viability of the employer."
We are talking here about subsection (2) which says that without prejudice to the generality of subsection (1) of this section in determining the amount of compensation payable under that section regard shall be had to the following... and then follow paragraphs (a), (b), (c) and (d). I suggest we should have a paragraph (e) as a protection clause for an industry that may be in a difficult position. This refers especially to where monetary compensation is involved. The amendment reads:
The effect of the payment of compensation on the financial and employment viability of the employer.
I am concerned about a rights commissioner, tribunal or court deciding that a highly-paid executive in a small company was entitled to be awarded 104 weeks salary or wages. That could be a very severe burden on a small company which was, perhaps, hardpressed, with a bad cash flow and scarcity of resources. It could also affect the employment potential in that firm. It is important that we should have some built-in safeguard or escape clause, one which would not be abused, but one which would enable the deciding body to see how seriously such a decision or award would affect a particular firm. It may be that a technical expert would be dismissed and that the rights commissioner or a tribunal or court might decide that he was unfairly dismissed and that he had a claim and that the settling of the claim, because of a problem of incompatibility between the expert and somebody in the firm, required the award of 104 weeks' pay at a very high figure. In that situation it might be harmful to the future employment potential of the company.
The Minister might say there are other courses open such as re-engagement or reinstatement or partial payment of the award but it might be impossible to sort out a personality clash or, perhaps, the successful claimant would want no other settlement but complete severance with the company and the cash award to which he would be entitled. I suggest in such circumstances that, in addition to the earlier provisions referred to, the escape clause should be included there, not to weaken the legislation but to ensure in those circumstances that the employment potential of the company would not be unduly affected. A highly paid executive today could be earning from £5,000 to £10,000 and two years pay at that figure could impose a severe strain on a company's resources and might even permanently close the company. That is why I ask the Minister to accept the amendment and give the deciding body an opportunity to take this matter into consideration when awards are being made.
Throughout the legislation we are saying that an employer, before he sacks an employee, must have good grounds for doing so. We spell out these grounds—capacity, capability and so on. If the person he wishes to dismiss lacks these qualities, he may be dismissed and the Bill will do nothing to prevent the employer taking this action. On the other hand, the Bill states clearly the grounds that would constitute unfair dismissal and where the employer would be liable under this legislation if he dismissed somebody in circumstances which under the Bill would be classed as unfair. We have a tribunal to investigate each case where an employer or an employee brings forward a case.
If the amendment were accepted, first it would detract from the deterrent possibilities of the legislation because there would be this let-out. I accept that the Deputy does not wish to supply a general let-out but is anxious to avoid a possible area of difficulty for an employer who would genuinely find himself in the situation to which he refers. Much of the success of the legislation depends on these tribunal bodies we have been referring to throughout the Bill and if we accept an amendment along these lines it would mean putting a very big burden on them. It would become one of their functions to assess the total economic viability of firms. This would be a new function added to their industrial relations function. Where a firm is in the financial straits that would lead to difficulty in this area, it is obviously bordering on a redundancy situation. Under the redundancy code employees can claim compensation where total or partial collapse of the firm creates genuine redundancy. There is a special code for employees in that situation and no claim would arise under this Bill.
The amendment would impose a new obligation on the tribunals, one that would be a heavy burden to discharge. In the very rare cases where this would arise we would need to have an employer who was almost as a matter of habit seeking to discharge employees and in each case he was at fault and breaking the law and in each case his need to dismiss people was the element which was bringing him close to bankruptcy. The Deputy will agree that these are very rare and extreme circumstances. If employees had difficulties in a firm which was near that financial condition the Redundancy Payments Act would operate to give satisfaction, not this Bill.
The Minister's remarks prove the necessity to have some sort of clause like this. The redundancy situation is entirely different. I would hope that no decision by any adjudicating body would push any company into the situation where employees would have to seek assistance by means of redundancy claims. This Bill rightly covers dismissals at all levels of employment.
Let us take the case of a production manager in a factory with an employment content of 40 people. If that production manager is dismissed by the general manager and the eventual decision is that there is no hope of reinstatement, he may not be prepared to accept that situation. If that was an unfair dismissal, it could cost the company £16,000 to £17,000. There are many companies today which have cash flow problems and that is often the straw that breaks the camel's back. It would be far less serious if we had a saving clause to cover such an occasional happening than it would be to see even ten people losing their employment as a result of such an award.
I repeat what I have said many times today. The exact wording of my amendment may not be entirely satisfactory to the Minister's draftsmen but I strongly urge that the spirit and the principle of it be considered by him between now and Report Stage. It is very important that not even one person would be forced out of employment because of an award of this nature. Such an event may never happen but if it does we will have this saver which cannot weaken the content of the section. With regard to the difficulty of the extra problem being imposed on the tribunal, there is no insurmountable problem there. Of course, proof will be needed but a decision on whether they were in a position to pay could be very easily ascertained. Again, I ask the Minister to look at the principle and the spirit of this amendment.
I will look at this amendment between now and Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 7, as amended, stand part of the Bill."
This is a redress section. I am glad we had this discussion. I thank the Minister for considering the points I raised. I want to refer again to the necessity for a saver for the firm that may be overburdened by an award greater than they could afford. My main concern is for the people employed in that firm. If the manager is unfairly dismissed and he makes his case to the tribunal, his award should not have the effect of closing the company and throwing people out of work. I would encourage the Minister to investigate this point very carefully between now and Report Stage when we will have an opportunity of submitting an altered amendment.
Question put and agreed to.
SECTION 8.
I move amendment No. 20f:
In page 9, line 25, to delete "6 months" and substitute "3 months".
I am not any happier with the period mentioned in my amendment than I am with that mentioned by the Minister. At an earlier stage I tried to ensure that the Unfair Dismissals Bill would not apply to companies or businesses employing a small number of people. Because that was not accepted I am fearful that the smaller companies—and we have many such companies who are giving worthwhile employment throughout the country— will suffer. That is why I feel six months is a very long period for an employee to write to his former employer claiming an unfair dismissal.
In industrial relations situations generally, if there is a dispute that dismissals are unfair, the sooner they are cleared up and settled the better for everybody and the less rancour will be left. If one person is dismissed from a firm employing eight people, seven employees still remain. There may not be a dispute about his dismissal and another person is employed to take his place. If the dismissed person lodges a claim for unfair dismissal some months later and he wins his case, the award of the tribunal could be one of re-engagement. What is the position of the man who has worked satisfactorily for those months? He has to be dismissed. Admittedly, he will not have served his 12 months which will bring him under the dismissal notice, but that is an undesirable situation. That is why I appeal to the Minister to shorten the period from six months.
The British have introduced a £50 settlement which appears to be a nuisance and takes up a lot of the time of the tribunal. That settlement is now regarded as the easiest and cheapest way out for everybody.
If a man has been dismissed four or five months previously and meets a friend and they have a few drinks, they may both decide that he has a genuine case for an unfair dismissal. Although he may have been justifiably dismissed he submits his claim for unfair dismissal. That five months period will help to build a genuine belief that he has a very strong case and the appeals tribunal and the rights commissioner will be inundated with too many trivial cases. The longer it takes the more likely it is that discontent will be exaggerated. How many times do we see in the newspaper the report of a court case as a result of a road accident where two genuine people give completely different versions of what happened, because when the accident happened they were, perhaps, excited and formed their own mental picture which became more firmly fixed in their minds as the weeks and months went by and both sides firmly believe their version is correct although if one version is true the other cannot be true. I fear that the six months period open to an employee in this case will overload the tribunal or commission.
I do not say what the ideal period is. I suggested three months. I will not divide the House on three months or six months. I merely say that six months is too long and this section should be looked at again. I know there are guidelines in other Bills which the Minister has followed in stipulating six months but each Bill must be taken on its own merits and on the implications that arise from it. If the Minister does not reduce this term, many trivial cases will come before the tribunal. The man who justifiably believes that he was unfairly dismissed will submit his case within 14 or 21 days or probably sooner and will not wait six months. Only the person who builds up a chip on the shoulder over four or five months will put his case late in the day.
Deputy Fitzgerald agrees that there are some disadvantages in his amendment. There are also some disadvantages in the six months. Arguments can be made for both cases. Six months would allow voluntary grievance procedures to operate in firms to see if the matter can be settled. I will undertake to look at it on Report Stage.
I accept that entirely. The reason I suggested three months was not to specify three months because I also believe that is too long but I thought six months was entirely too long.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 10, to delete subsection (6) and to substitute the following subsection:
"(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public."
This is to allow as much discretion as possible to the rights commissioner. Tribunal cases are heard in public but either party has the option that a hearing would be in private. This amendment will require that claims before a rights commissioner should be heard in private. It is better that cases before the rights commission should be heard in private to see if they can be settled at that stage. People find it easier to say things if it is not in public.
It would be good for the legislation if the rights commissioner could be used as often as possible. The fact that the proceedings would be private would speed up the processes. It is desirable that this legislation should not be protracted. I am prepared to support the amendment.
Amendment agreed to.
In relation to amendment No. 21a put down by Deputy Fitzgerald, I am in general agreement with the need for a provision where a dismissed employee dies. I propose to move on Report Stage an amendment on another section of the Bill to give effect to the objective Deputy Fitzgerald has here in this amendment. I would ask Deputy Fitzgerald not to move this amendment on the understanding that I will introduce an amendment on these lines in the appropriate section.
There are two separate things.
I will cover both of them.
Amendment No. 21a not moved.
Question proposed: "That section 8, as amended, stand part of the Bill."
This is the section on the determination of claims for unfair dismissals.
Is there any possibility of getting through to the end, before we adjourn?
There are 24 sections in the Bill. We have had a very co-operative afternoon but I do not think it is fair to push me into giving 16 sections. Despite the fact that there are no amendments, there is room for a Fourth Stage amendment. Although we have made a lot of progress it would be unfair to take the Bill now in ten minutes because it is very important and its effects are too serious. We are all anxious that it will have a beneficial effect. Section 8 is not simple to follow. A person can go to a rights commissioner but he can also avoid a rights commissioner. Why is there an opportunity for avoiding the rights commissioner? Surely all parties should be encouraged to go to the rights commissioner first, particularly in view of the fact that we have agreed that the case should be heard in private. Much better progress would be made if a case was brought in a private hearing before a rights commissioner rather than if at the request of one person the rights commissioner was circumvented. If the case is not resolved at rights commissioner level, then it is understandable that it should pass on to the appeals tribunal. Why has the Minister decided to allow the opportunity for the rights commissioner to be circumvented? It is of no advantage to the Bill and as I said earlier the English experience has been that the tribunals have been absolutely overloaded with work.
In the manner in which this operates under the Industrial Relations Act, similar right is available to the individual to go to the courts or to the rights commissioner. If no good reason is brought forward for doing otherwise, we endeavour to remain consistent with the procedure in the main Act and the procedure here is taken from the main Act. There is no doctrinal reason for it being put in this way. However, I could look at this again between now and Report Stage. While I take the Deputy's point I prefer to leave the same kind of latitude with which the Industrial Relations Act operates. Obviously, the privileges of the rights commissioner would give a certain advantage to both sides but I do not know whether we should set that down as a first step. It is in everybody's interest to have some formula settled as speedily as possible but I shall think it over between now and Report Stage.
The reason for my suggesting this to the Minister results from the concern being expressed in Britain at the way in which the legislation is operating there in terms of cost and of personnel. We should encourage the use of a rights commissioner so far as possible. I appreciate that the Industrial Relations Act has proved satisfactory but I fear a situation in which too many cases would go before the tribunal.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
In relation to subsections (2) and (3), why should the employers' expenses be paid by the Minister?
The court might so direct.
I should hope not.
I should hope not, too, but I am leaving it open.
I could understand a court directing the State to pay its rightful share of the expenses but I am not happy about the provision for an employer to be reimbursed by the State.
This is only to cover situations in which I would initiate action on behalf of an employee. In the event of a court finding against the employee I would not have to come back here. That is the purpose of the provision.
I do not believe that either this Minister or any who might succeed him would take this sort of action lightly. Consequently, I am concerned in relation to the provision. Would the Minister be prepared to consider the point between now and Report Stage?
I would.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
The provision here regarding the serving of a summons or other document seems to be rather open but I suppose the Minister will tell me that, again, we are adopting the pattern of previous legislation. I am not happy that the section be left like this.
I am informed that this is the standard wording for such legislation. There is no matter of principle at issue.
I anticipated that reply but I am not happy that any such document should be left, for instance, against the wall of some premises.
The aim is to have the summons served on the premises concerned but I shall have a look at this again.
As a result of continued pressure the legislation coming before us now is couched in more simple terms than was the case previously. We can claim some credit for that but I would like the Minister to look again at the wording of this section.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
I take it that the provision here regarding a bankruptcy situation is more or less in line with the Redundancy Act.
That is so.
Let us hope that the situation will not be worsened by awards of the type I referred to earlier. I should like the Minister to keep an eye on that situation.
Question put and agreed to.
Section 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
There is an innovation here in subsection (1) and subsection (4) providing that where an employee is dismissed the employer shall, if so requested, furnish to that employee particulars of the grounds for dismissal. As I read this, an employer will now be duty bound to enter into a written contract within 28 days of engaging an employee.
Progress reported; Committee to sit again.